Submitted by Elaine Magliaro, Guest Blogger
I thought I’d do a follow-up to my Let Civil Liberties & Freedom Ring! post about the erosion of civil liberties in Britain—which, in my opinion, is akin to what
has been happening here in the United States in the past decade. My inspiration for a second post on the subject was Glenn Greenwald’s most recent piece at Salon—Homeland Security’s laptop seizures: Interview with Rep. Sanchez.
I have been reading about the seizures of cell phones and laptop computers by the DHS. I have found it troubling that our government has no compunction about confiscating the personal property of some of its own citizens without any warrant, probable cause, or suspicion that the citizens may have been involved in a criminal activity.
Our civil liberties and rights are being eroded while most of us sit silent. Where is the outcry? Even a watchdog like Greenwald talks of how he had become “inured” to the abuses of our civil liberties and how “severe incursions start to seem ordinary.” Greenwald wrote:
“Such was the case, at least for me, with Homeland Security’s practice of detaining American citizens upon their re-entry into the country, and as part of that detention, literally seizing their electronic products — laptops, cellphones, Blackberries and the like — copying and storing the data, and keeping that property for months on end, sometimes never returning it. Worse, all of this is done not only without a warrant, probable cause or any oversight, but even without reasonable suspicion that the person is involved in any crime.”
Greenwald goes on to talk of how there is no law which authorizes the DHS with such powers—and how we citizens have no recourse to have our personal property returned to us if it is confiscated. Few members of Congress appear concerned. There is, however, one person who is attempting to address the problem—Rep. Loretta Sanchez, a Democrat from the state of California. Greenwald reports that Sanchez has introduced H.R. 216, a bill that would require DHS to issue rules governing searches and seizure, impose some reporting requirements, and give some “modest” rights to people who have had the property seized by DHS.
There is always a huge outcry when someone brings up gun control. Why don’t people get as concerned about the diminution of their Fourth Amendments rights as they do about restrictions being put on their Second Amendment rights?
Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
**********
I recommend the reading of Greenwald’s entire article. I also recommend listening to his interview with Rep. Sanchez here. (Scroll down to the end of Greenwald’s article for the interview.)
Source: Glenn Greenwald (Salon)
By the way . . . reading the CFR on a belly full of tacos makes Buddha Want Some Tums. 🙂
So, let me see if I understand. The DHS takes my property without a warrant, but I have to ask them for it back, nicely?!
Elaine,
If they are not returning property that didn’t qualify as contraband or evidence of criminal behavior that has been formally requested to be returned, then yes, the DHS is breaking the law.
And . . .
TITLE 19 – CUSTOMS DUTIES
CHAPTER I – BUREAU OF CUSTOMS AND BORDER PROTECTION, DEPARTMENT OF HOMELAND SECURITY; DEPARTMENT OF THE TREASURY
PART 162 – INSPECTION, SEARCH, AND SEIZURE
subpart h – CIVIL ASSET FORFEITURE REFORM ACT
162.92 – Notice of seizure.
(a) Generally. Customs will send written notice of seizure as provided in this section to all known interested parties as soon as practicable.
Except as provided in paragraphs (b), (c) and (d) of this section, in no case may notice be sent more than 60 calendar days after the date of seizure. Any notice issued under this section will include all information that is required by 162.31(a) and (b) of this part.
(b) Seizure by state or local authorities. In a case in which property is seized by a state or local law enforcement agency and turned over to Customs for the purpose of forfeiture under Federal law, notice will be sent not more than 90 calendar days after the date of seizure by the State or local law enforcement agency.
(c) Identity or interest of party not determined. If the identity or interest of a party is not determined until after the seizure or turnover, but it is determined before a declaration of forfeiture, notice will be sent to such interested party not later than 60 calendar days after the determination by Customs of the identity of the party or the party’s interest.
(d) Extensions by Customs. (1) The Assistant Commissioner, Investigations, or his designee, may extend the period for sending notice under this section for a period not to exceed 30 calendar days, if it is determined that issuance of the notice within 60 calendar days of seizure may have an adverse result, including: (i) Endangering the life or physical safety of an individual; (ii) Flight from prosecution; (iii) Destruction of or tampering with evidence; (iv) Intimidation of potential witnesses; or (v) Otherwise seriously jeopardizing an investigation or unduly delaying a trial.
(2) The period for sending notice of seizure as provided in paragraph (d)(1) of this section may not be further extended except by order of a court of competent jurisdiction as prescribed in paragraph (e) of this section.
(e) Extensions by a court. Upon motion by the Government, a court of competent jurisdiction may extend the period for sending notice for a period not to exceed 60 calendar days. This period may be further extended by the court for additional 60 calendar-day periods, as necessary, if the court determines, based on a written certification of the Assistant Commissioner, Investigations, or designee, that the conditions set forth in paragraph (d) of this section are present.
And . . .
TITLE 19 – CUSTOMS DUTIES
CHAPTER I – BUREAU OF CUSTOMS AND BORDER PROTECTION, DEPARTMENT OF HOMELAND SECURITY; DEPARTMENT OF THE TREASURY
PART 162 – INSPECTION, SEARCH, AND SEIZURE
subpart d – PROCEDURE WHEN FINE, PENALTY, OR FORFEITURE INCURRED
162.31 – Notice of fine, penalty, or forfeiture incurred.
(a) Notice. Written notice of any fine or penalty incurred as well as any liability to forfeiture shall be given to each party that the facts of record indicate has an interest in the claim or seized property. The notice shall also inform each interested party of his right to apply for relief under section 618, Tariff Act of 1930, as amended (19 U.S.C. 1618), or any other applicable statute authorizing mitigation of penalties or remission of forfeitures, in accordance with part 171 of this chapter. The notice shall inform any interested party in a case involving forfeiture of seized property that unless the petitioner provides an express agreement to defer judicial or administrative forfeiture proceedings until completion of the administrative process, the case will be referred promptly to the U.S. attorney or the Department of Justice if the penalty was assessed under section 592, Tariff Act of 1930, as amended (19 U.S.C. 1592), for institution of judicial proceedings, or summary forfeiture proceedings will be begun.
For violations involving the possession of personal use quantities of a controlled substance, also see 171.55.
(b) Contents of notice. The notice shall contain the following: (1) The provisions of law alleged to have been violated; (2) A description of the specific acts or omissions forming the basis of the alleged violations; (3) If the alleged violations involve the entry or attempted entry of merchandise, (i) A description of the merchandise and the circumstances of its entry or attempted entry, and (ii) The identity of each entry, if specific entries are involved; and (4) If the alleged violations involve a loss of revenue, (i) The total loss of revenue and how it was computed, and (ii) The loss of revenue attributable to each entry, if readily susceptible to calculation.
(c) Demand for deposit in case of smuggled articles of small value. In the case of smuggled articles of small value, demand shall be made for immediate deposit of an amount equivalent to the domestic value of the articles on account of the liability to a penalty incurred as distinct from liability of the goods to forfeiture. Such sum shall be deposited whether or not a petition for relief is filed in accordance with part 171 of this chapter. A demand for deposit need not be made in connection with any liability incurred by the master of a vessel under the provisions of section 453, Tariff Act of 1930, as amended (19 U.S.C. 1453).
[T.D. 72211, 37 FR 16488, Aug. 15, 1972, as amended by T.D. 7838, 43 FR 4255, Feb. 1, 1978; T.D. 79160, 44 FR 31956, June 4, 1979; T.D. 8590, 50 FR 21431, May 24, 1985; T.D. 8986, 54 FR 37602, Sept. 11, 1989]
And here’s a summary from http://www.uscis.gov/ilink/docView/FR/HTML/FR/0-0-0-1/0-0-0-145991/0-0-0-163040/0-0-0-163598.html
Pursuant to the provisions of section 618 of the Tariff Act of 1930, as amended (19 U.S.C. 1618), petitions for remission of forfeitures were accepted by the former U.S. Customs Service, and now accepted by CBP, prior to initiation of any administrative or judicial forfeiture process. Under the regulations adopted under section 274(b) of the Immigration and Nationality Act of 1952, as amended (8 U.S.C. 1324(b) (INA)), the remission or mitigation of such forfeitures could occur only after completion of t he forfeiture process. No statute, however, requires this restriction. Under this interim rule, the procedures previously used for immigration-related forfeitures will be eliminated and all asset forfeiture proceedings will be conducted under a consolidated procedure. This interim rule revises 8 CFR part 274 in its entirety to bring seizures and forfeitures effected under section 274(b) of the INA, as amended, and other forfeiture authorities, into conformity with procedures under 19 CFR parts 162 and 171. This change permits CBP to entertain petitions for remission and return of seized property prior to completing the forfeiture process, whether the seizure was effected under the customs laws or the immigration laws, and whether the seizure was made by CBP or ICE.
So the short answer is “yes” but you have to ask for it formally.
Thanks for the link Buddha. I guess I might get worried about a fight in court over what is and what is not conraband!
Buddha,
Thanks. So…has DHS broken the law?
Elaine,
TITLE 19 – CUSTOMS DUTIES
CHAPTER I – BUREAU OF CUSTOMS AND BORDER PROTECTION, DEPARTMENT OF HOMELAND SECURITY; DEPARTMENT OF THE TREASURY
PART 162 – INSPECTION, SEARCH, AND SEIZURE
subpart h – CIVIL ASSET FORFEITURE REFORM ACT
162.93 – Failure to issue notice of seizure.
If Customs does not send notice of a seizure of property in accordance with 162.92 to the person from whom the property was seized, and no extension of time is granted, Customs will return the property to that person without prejudice to the right of the Government to commence a forfeiture proceeding at a later time. Customs is not, however, required to return contraband or other property that the person may not legally possess.
Buddha,
“The property should be returned or it constitutes a seizure.”
You wrote “should” be returned. Is the government REQUIRED to return the properties it seizes at the border as the laws now stand?
@J Brian Harris, Phd, PE
I like the idea of absolute rights.
@ Former Federal LEO
Thank you for your nice encouragement. I do have to go and work on my website, I have stuff to post.
@ rafflaw
as for as the sex orientation issues, I was upstairs doing the dishes and I thought of a sorta strange story. I have been blogging since July 2007. I was doing the WSJ law blog a lot and there I met a transsexual lawyer. I tried to get her to work for pro se rights, since as a transexual she had benefited from really cutting edge privileges. But she absolutely totally refused. And I was trying to be open minded to her situation.
FF Leo,
I’m a dinosaur too! I can’t say exactly when my attitude toward homosexuality changed. I believe I know why it changed. The younger brothers of two of my oldest and dearest friends are gay and they are fine human beings–as are the gifted and witty music teacher I worked with for many years and one of my daughter’s childhood friends (who is a gentle soul and a talented young artist today). That’s just mentioning four of the people who helped me see the light.
Gays and lesbians have been discriminated against–even by our own government. This post is about our civil liberties and our rights. I feel expressing your high esteem for Mr. Greenwald is perfectly appropriate–at least as far as I’m concerned. Isn’t it too bad that Glenn Greenwald has chosen to live in another country because he can’t live his life the way he would like to in the United States?
Elaine,
The property should be returned or it constitutes a seizure.
Kay,
Although I am indeed sick of hearing about it, post all you like. This isn’t my site. As FFLEO suggests, I don’t read most of them.
Everything we think of as a right is only a right because citizens of the past really put themselves out to get it. So something like Freedom of Speech is a lot more important than you might think because it is connected to all those other rights — democracy, elections, due process, government accountability, family, privacy, property, and liberty.
I am beginning to believe that everything is unconstitutional, and, especially, that believing that anything is unconstitutional is more unconstitutional than all else.
Fortunately, the Constitution is a living document…
Has the Constitution, as a living document, become so voraciously hungry that it is consuming everything, including itself?
Former Fed,
If you are a dinosaur, you have plenty of company here!
I want to make a brief statement about Glenn Greenwald since his comments are central to Ms. EM’s topic. As I stated previously, I am still somewhat of a homophobe partly because I am a reflection of 1950s attitudes. Clearly, as a biologist, I know that homosexuality is not a lifestyle choice so my logical thinking overwhelmingly discounts most of my personal biases I have regarding the acts that occur in such relationships.
Glenn Greenwald, notwithstanding his sexuality, is an exceptionally brilliant thinker, cogent author, and he possesses the courage to speak out about topics which others—especially attorneys—would not dare broach, for whatever reasons—legitimate or otherwise. Regarding legal issues, and except for this blawg, I read Greenwald’s comments the most.
I ask that we do not turn this excellent topic regarding the loss of our civil liberties into any other argument. I simply wanted to state that Mr. Greenwald is a constitutional law hero of mine despite my sometimes-archaic dinosaur biases.
I agree with Raf and FFLEO, to make a law now that modifies an illegal practice simply legitimizes the practice, it needs to be stopped.
Actually, there is a case brought against the practice noted below. I see a problem with enacting a modifying law at this point because if enacted, the new law could render the instant case moot and actually delay a challenge to parts of the law untouched by the new law. It might also make it impossible to successfully challenge parts of the policy actually modified by the new law. This seems to be a win for Homeland Security.
“NPPA Joins Federal Suit Challenging Constitutionality Of DHS Laptop Searches
By Donald R. Winslow
© 2010 News Photographer magazine
NEW YORK, NY (September 7, 2010) – Today in a federal lawsuit filed on behalf of the National Press Photographers Association, the American Civil Liberties Union and NPPA joined in a Constitutional challenge of the U.S. Department of Homeland Security’s laptop search policy at the border.
Filed this morning in the United States District Court for the Eastern District of New York, NPPA along with the ACLU, the New York Civil Liberties Union, and the National Association of Criminal Defense Lawyers joined graduate student Pascal Abidor and NPPA member Duane Kerzic as plaintiffs against DHS Secretary Janet Napolitano. …”
http://www.nppa.org/news_and_events/news/2010/09/lawsuit.html
FF Leo,
“The judiciary needs to quash the illegal practices that diminish our civil liberties.”
I agree! Isn’t it too bad that Rep. Sanchez believes she can’t introduve a better bill?
From the Greenwald article:
“One point Rep. Sanchez emphasized is that even if she wanted a stronger bill (and it seems clear she does), the chance of enacting it in the GOP House is very small.”
*****
Also from the Greenwald article:
“I actually anticipated this interview would be somewhat confrontational because I think this bill — though well-intentioned — is woefully inadequate and potentially even counter-productive. The bill does not in any way curb the central abuse: Homeland Security’s seizure of people’s property without any probable cause or even reasonable suspicion (a bill introduced by then-Sen. Feingold would have barred all such searches in the absence of reasonable suspicion). Rep. Sanchez’s bill also leaves it up to DHS to promulgate its own rules rather than having Congress fulfill its oversight duties by imposing rules on the agency. And worst of all, the bill could be seen as codifying — granting the Congressional stamp of approval and thus strengthening — Homeland Security’s power to conduct these suspicionless seizures.”
That REALLY concerns me!
Where do I sign up…..
Former Fed,
I agree with you if the regs and rules that DHS is supposed to promulgate are strong enough to make a difference in protecting the traveler, then I would be in favor. I am not holding out much hope that DHS will cooperate in that regard.
Kay,
You have every right to post here and the only arbiter is Professor Turley. People can censor your comments by skipping your posts if they so choose.