Border patrols are setting up checkpoints within 100 miles of the U.S. border
Article first appeared in reason.com/blog:
For me, last week was a vacation week, spent in San Diego. My family reaches that city on Interstate 8, which lies in what the American Civil Liberties Union calls the "Constitution-free zone" within 100 miles of the United States border. This trip, that meant not one, but two stops at Border Patrol checkpoints (PDF). This time, we had to assure officials of our citizenship at permanent checkpoints instead of at the roving "tactical" checkpoints that appear hither and yon, not that there's much difference from motorists' point of view. After the second stop in the middle of the desert, surrounded by armed men and "working dogs" (as the signs assured us), my wife turned to me and said, "we need to start carrying Tony's passport when we're driving."
Tony is seven, and surrounded though he is in the back seat by Calvin and Hobbes compilations and the latest book in the N.E.R.D.S. series that he's taken to, he has little in the way of legal documentation. True, no Border Patrol officer at an interior checkpoint has yet insisted that I provide proof of his identity, let alone his citizenship, but a stretch of blazing desert highway halfway between wide spot in the road and dead coyote is no place to be surprised. Hence, my wife's new conviction that we really need to start carrying our son's passport so we can display it on demand while traveling within the United States, without ever crossing an international border.
U.S. Customs and Border Protection insists (PDF) that "all Border Patrol checkpoints operate in accordance with the Constitution of the United States and governing judicial rulings," and they're correct, if you leave room for interpretation and some vigorous wiggling. The Supreme Court has ruled, in cases including United States v. Montoya de Hernandez, that "automotive travelers may be stopped at fixed checkpoints near the border without individualized suspicion, even if the stop is based largely on ethnicity." The executive branch has interpreted "near" to mean "100 miles" which, I guess, is near enough if you work on a sufficiently large cartographic scale.
The Government Accountability Office clarifies the official position a bit further (PDF):
Border Patrol agents at checkpoints have legal authority that agents do not have when patrolling areas away from the border. The United States Supreme Court ruled that Border Patrol agents may stop a vehicle at fixed checkpoints for brief questioning of its occupants even if there is no reason to believe that the particular vehicle contains illegal aliens. The Court further held that Border Patrol agents “have wide discretion” to refer motorists selectively to a secondary inspection area for additional brief questioning. In contrast, the Supreme Court held that Border Patrol agents on roving patrol may stop a vehicle only if they have reasonable suspicion that the vehicle contains aliens who may be illegally in the United States—a higher threshold for stopping and questioning motorists than at checkpoints.12 The constitutional threshold for searching a vehicle is the same, however, and must be supported by either consent or probable cause, whether in the context of a roving patrol or a checkpoint search.
By the way ... "Probable cause?" That's where those "working dogs" come in. As Reason's Jacob Sullum has reported, dogs may not be reliable detectors of contraband, but they are reliable sources of probable cause.
That 100 mile strip is pretty well populated, being full of major cities and densely setted coastal states. The ACLU ran some calculations and reports, "What we found is that fully TWO-THIRDS of the United States’ population lives within this Constitution-free or Constitution-lite Zone. That’s 197.4 million people who live within 100 miles of the US land and coastal borders."
Most of those areas aren't subject to routine stops and status checks. That's a special joy generally reserved for residents of the Southwest and some parts of the country bordering Canada. But the federal government's position is that it can impose such checks within 100 miles of the border if it so chooses.
Maybe packing your kids' passports for travel within the United States isn't such a crazy idea. We already have the internal checkpoints; we might as well make sure we all have our papers in order to match.
http://reason.com/blog/2013/06/03/should-we-start-carrying-passports-to-tr
Your rights under attack: What a difference 100 miles make:
DHS has apparently decided to void the Constitution if you live within 100 miles of the U.S. border. Your electronics may be seized and your data searched if you live or are travelling within 100 miles of the border. This is not a new story. This policy has been known since 2008. From the beginning there were calls for Congress to reign in the overreach of the the Department for Reich, er, Homeland Security that went unheeded. Most of the calls were for residential traveller exemptions. However, there are new developments. This draconian policy, neglected by Congress, has been unilaterally declared just fine and dandy by the DHS itself in yet another example of the Executive unilaterally claiming unconstitutional powers over citizens with their only check being their own rubber stamp. This policy not only vitiates the 4th Amendment, but has implications for the 1st and 14th as well.
Two-thirds of the United States’ population lives within this Constitution-free Zone. That’s 197.4 million people, including everyone in Hawaii. And Florida, Rhode Island, Maryland, Connecticut, New Jersey, Massachusetts, Maine, New Hampshire and Michigan. Aloha!
Regarding the 4th Amendment concerns, the DHS (in their superficial two page memo) declared that “We also conclude that imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/civil liberties benefits.” Yeah, who needs those pesky Constitutional protections when they interfere with the DHS doing whatever they want to mind your business. What is perhaps most troubling about this memo is its superficial nature. That conclusion quoted above? Is the entire breadth and depth of their analysis in justification of this policy. It is the legal equivalent of “because we said so.”
The 14th Amendment does manage to garner more attention than either the 1st or 4th though:
The Constitution forbids intentional and invidious discrimination by the federal government on account of race, religion, or ethnicity. Accordingly, we recommended that CBP supplement the Department’s overarching antidiscrimination policy by stating explicitly in policy that it is generally impermissible for officers to discriminate against travelers—including by singling them out for specially rigorous searching because of their actual or perceived race, religion, or ethnicity, and that officers may use race, religion, or ethnicity as a factor in conducting discretionary device searches only when (a) the search is based on information (such as a suspect description) specific to an incident, suspect, or ongoing criminal activity, or (b) limited to situations in which Component leadership has found such consideration temporarily necessary based on their assessment of intelligence information and risk, because alternatives do not meet security needs. CBP agreed and this change has been implemented.
In addition, we recommended that CBP improve monitoring of the distribution of electronic device searching by race and ethnicity by conducting routine analysis, including semi-annual examination of electronic device searches by port of entry. After controlling for known relevant and permissible factors, such as port traveler demographics, and inclusion in watchlists, lookouts, and targeting rules, the analysis should assess whether travelers of any particular ethnicity—estimated using document information and name analysis—at any port of entry are being chosen for electronic device searches in substantial disproportion to that ethnicity’s portion of all travelers through the port. Data and results should be shared with CRCL. This recommendation is being implemented on an ongoing basis.
As part of conducting the impact assessment, we reviewed data on all non-watchlist-related device searches in FY2009 and FY2010 (Oct. 1, 2008–Sept. 30, 2010); we did not find evidence that searches were prompted by the ethnicity of travelers. If from future analysis of data it appears that electronic device searching in any port has a substantial unexplained skew towards travelers of one or more ethnicity, we have recommended that CBP work with CRCL on developing appropriate oversight mechanisms; subsequent steps generally should include a requirement of supervisory approval for searches (absent exigent circumstances) or enhanced training, and may include other responses to ensure that such concentration is not the result of bias or other inappropriate decision-making. CBP has agreed.”
http://jonathanturley.org/2013/02/10/your-rights-under-attack-what-a-difference-100-miles-makes/
Roadblock Revelations- Exposing the police state one checkpoint at a time:
https://www.checkpointusa.org/blog/index.php
Congress, not DHS, should devise border security plan:
Washington, D.C. - Republican Sen. Marco Rubio, a key author of the bipartisan Senate immigration overhaul, is working on a proposal that would give Congress, not the Obama administration, the authority to devise a plan to bolster border security.
The Florida senator has long insisted that the bill's border security provisions are not strong enough to win significant Republican support. He plans to introduce his proposal as the legislation moves to the Senate floor late this week or next.
As the legislation is now written, the Department of Homeland Security would be required to develop a plan to achieve effective control of 90% of the border with Mexico before immigrants in the U.S. illegally would be allowed to gain permanent legal status. Rubio's emerging alternative would shift the responsibility for creating that plan to Congress.
"The problem is people do not trust this administration and the federal government in general to do the law," Rubio said during a recent interview on Fox News. "Maybe the solution is to actually have Congress write that plan for them."
Democrats are likely to look skeptically on any major border security changes in the bill, a delicately negotiated compromise that strengthens immigration enforcement while providing a route to citizenship for the estimated 11 million immigrants who entered the country illegally or overstayed their visas. But Democrats are also expected to try to accommodate Rubio to retain his support.
The bill is the most ambitious proposal to revamp immigration law in a generation; it would provide $4.5 billion for more drones, Border Patrol agents, fencing and other security measures on the southern border. Once a plan to control the border has been approved, immigrants could begin what for most would be a 10-year path to legal status. They would have to undergo background checks, pay fines and fees, and show they are financially stable. In 13 years, they could become citizens.
http://www.latimes.com/news/nationworld/nation/la-na-immigration-rubio-20130602,0,6144355.story