by Gene Howington, Guest Blogger
We are all aware of and concerned about the steady erosion of our civil rights at the hands of ever overreaching Federal government. It is a topic that brought many of us to this blog and a topic that draws more audience every day. The latest victim of tyranny is the 4th Amendment. The 4th Amendment to the U.S. Constitution reads:
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.”
Seems pretty straight forward. However, the 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.
To get an idea of the scope of this “Constitution-free Zone”, consider this map:
Consider too that fully two-thirds (2/3) 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.”
Their stunning hubris and lack of substantive rational also stretched to the 1st Amendment:
Some critics argue that a heightened level of suspicion should be required before officers searchlaptop computers in order to avoid chilling First Amendment rights. However, we conclude thatthe laptop border searches allowed under the ICE and CBP Directives do not violate travelers’First Amendment rights.” – That is their entire analysis, by the way.
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.” [emphasis added]
I feel so much better knowing that they aren’t discriminating indiscriminately when violating the Constitutional rights of citizens unless their “component” leadership decides it is otherwise necessary. I also love that they capitalized the word “component” in the memo. It instils the greatest faith that their components are probably incompetent.
Is this matter worthy of Congressional redress? Some think so, but there has been no movement on the proposed Travelers’ Privacy Protection Act (.pdf), introduced in the Senate by Senators Russ Feingold (D-Wisconsin) and Maria Cantwell (D-Washington) in 2008 and it is dead in committee in its current form.
Is this matter worthy of judicial review? Absolutely. History teaches us that unchecked power remains unchecked as long as it is unchallenged.
Is this a symptom of a wider problem with the Executive? I think unquestionably so. From border policy to drone policy to detention policy to the kill list, we see an ever increasing move by the Executive to claim unitary power and use it to dispose of our Constitutional rights. I think reigning in the abuses of the Executive branch should be the number one priority in every upcoming electoral cycle until the problem is addressed and the Office of the President brought back into the fold of the checks and balances created by our Founding Fathers in the Constitution. Why? Because of the historical parallel of an Executive chipping away at citizens rights and the powers of the courts and legislature and how that ended. You all know his name. A minor league German pol that rose to power on a message of fear and hatred to eventually become one of the greatest monsters in human history. To think that it can’t happen here is a myth of epic proportion.
What do you think?
Source(s): Wired (1, 2), ACLU (1, 2), U.S. Constitution, DHS Civil Rights/Civil Liberties Impact Assessment Border Searches of Electronic Devices (.pdf), Travelers’ Privacy Protection Act (.pdf), Tracking on Travelers’ Privacy Protection Act
~submitted by Gene Howington, Guest Blogger
if you allow the American people to be just warmed it will only get worse. That is the history of mankind
The FBI and various factions of the US government have a long history
of violating Amerikan citizens rights…Torture of Amerikans citizens, mind control experimentation, warrantless wiretaps of telephones, use of GPS monitoring through cell phones, secret kill lists of Amerikan citizens and a number of organizations-ACLU, EFF, CREW, National Security Achive, Bill of Rights Defense Committee, CCR are filing suit to expose the methods
of these Orwellian Fascists….Torture of American Citizens…suit against Bush administrations Rumsfeld…
… … http://www.theblaze.com/stories/2011/08/08/fed-court-clears-another-torture-lawsuit-against-donald-rumsfeld …
Good point about international airports. Guess that plus the rest, covers about 90 percent of the pop. So is it creeping totatlitarianism (or whatever you call it), or is it an avalanche?
Are corporations “people” in this regard, as well? Can DHS search some of those Wall Street computers to see if they contain any information that is dangerous to the US? [wry, bitter, and sort of sarcastic]
Oh for pity’s sake? Someone is actually going to insist that the 2nd Amendment is protection of the rest? Seriously? There are plenty of guns out there right NOW and I don’t see them protecting a damned thing against Homeland Security crap, or TSA man-handlings. Anyone opening fire on federal agents is going to be dead and very rapidly…and it isn’t going to protect ANYone.
Its amazing how much people squeal about the lose of constitutional rights,but when it comes to the 2nd amendment they make all kinds of reasons we need to infringe on it. Dont you know without the 2nd the rest are gone. Its not about hunting or sport shooting. Its about shooting jack booted thugs in defence of life liberty and propertty. When the rest of your rights are gone , thank Feistein and Boxer and yourself if you dont stand up and say “No more!”
Gene…thanks but i have no 4 letter words in the post but have refererenced over 10 links relating to illegal activity by our Orwellian agencies which are very important citing the work of EFF, CCR, ACLU, CREW, National Security Archive, and others…so i will keep trying to post…the Thomas Drake whistleblower case is another important case that people should be aware of… … http://www.whistleblower.org/action-center/save-tom-drake …
woody,
If you have more than two links, the comment automatically goes into moderation. It will also do so if your post contains the words b*tch, b@stard, f*ck or assh*ole. No one is erasing your comments. Also, occasionally WP either wrongly puts a comment into spam or simply eats a comment because of software bugs.
I know this has been explained to you before.
Someone is erasing my comments…does Robert Mueller have a wiretap on this site and computer???
Kucinich letter assassinations
… http://kucinich.house.gov/uploadedfiles/ltr._to_holder_targeted_assassinations_02-04-2010.pdf …
case involving tracking devices on Amerikan citizens cars and Mr. Muellers comments on the FBI putting tracking devices on Supreme Court judges cars….and on the FBI assassination program of Amerikan citizens…???
… http://dissenter.firedoglake.com/2012/03/07/fbi-chiefs-problem-with-needing-warrants-for-gps-tracking/ …
does an international airport also qualify as a “border” in this analysis? *everybody* probably lives within 100 miles of one of them…
I will not snark, I will not snark, even tho some suggest turning to your Congressman. Futile.
I am glad to see that several are asking for “What do we do”.
Remember the fight for black rights? Well, we need folks who will fight to retain their rights, you know—-the ones that folks at the mall don’t know about and regard as subversive. They are of course the RWA’s if you remember what that is. I will post the link later.
Meanwhile see if you can get the students to go out with a table and signs asking: “do you know that we have a constitution and that you have rights under it? ” etc.
Meanwhile talk up activism. It is the only thing they fear. And do it now, soon we won’t be allowed any rights to assemble, petition, speak. Etc. Then quiet will reign. And thought will cease. We will exist on bread and water. A la Coelho’s “Alchemist”.
Serfdom? Worse.
The DHS is targeting political activists, American citizens, when they come back to the U.S. It’s one thing to search for drugs at the border or explosives. But searching the electronics of U.S. citizens? They are citizens, there shouldnt’ be any searches of electronics without reasonable suspicion. American citizens can’t be denied the right to return to their nation. They shouldn’t have to show their writings, pictures of blog posts to the government.
Gene, he needs to ask the burning question, WWLBJD?
“What Would Lyndon Baines Johnson Do?”
LBJ would have Box Turtle McConnell and John of Orange’s arms twisted so far they could be used as trebuchet springs. LBJ had enough nasty surprises for those who opposed him, he got what he wanted almost every time. For one thing, he could make sure no Federal money at all would percolate down to congressional districts of people who ticked him off.
And what’s this? “Obama weighing executive actions on housing, gays and other issues” . . . and further usurping the power of Congress and destroying the Separation of Powers Doctrine.
http://www.washingtonpost.com/politics/obama-weighing-executive-actions-on-housing-gays-and-other-issues/2013/02/10/e966cc06-7065-11e2-8b8d-e0b59a1b8e2a_story.html
Might as well send Congress and the courts home. The Prez has it covered. He’ll just make up all the laws and decide who lives or dies from now on.
Otteray
That story of Chuck Yeager. Magnificent.
Incidently, I just received that book you recommended. Inside the Criminal Mind will let you know
True story. This is from Chuck Yeager’s biography. Shortly after WW-II the (then) young ace was traveling with his family and crossed the California border. There was one of those agricultural checkpoints at the border, and the agent gave Yeager and his family a hard time. IIRC, they confiscated some flowers and seeds Mrs. Yeager was going to use to plant a garden.
Wrong guy to mess with. When Yeager got to his new duty station, he commandeered a B-26 medium bomber. This was one of the fastest bombers used in the war. It had two huge engines which were attached to unusually small wings. It was so fast that several of them shot down German fighter planes in dogfights. At any rate, Yeager and his buddies (henchmen?) loaded the bomb bay as full of ripe watermelons as they could pack in. He put the plane right down on the deck at full throttle. As they passed over the agriculture checkpoint hut, the bombardier opened the bomb bay doors. I understand watermelons still grow all around that area. I would have paid good money to see two or three tons of watermelons hit the ground at three hundred miles an hour.
For some reason, the checkpoint cop did not get a tail number. It’s a mystery. Maybe he needed new glasses.
Dredd, Thanks for the video, I sorted two weeks worth of laundry for my trip to the laundromat tomorrow while I listened. I just earned an extra cup of coffee in the morning.
I think I would last about 3 minutes if I tried to do that. The driver was very careful to NOT say things. I noticed he never stated he was a citizen of the USA, …Would that have given the cops the right to make him prove it? The driver simply claimed he lived here. I think the driver avoided about ten traps of word usage that I would have fallen face first into. I wonder if there is a primer on U-tube of what to avoid saying?
I though, if I was clean, legal, and proper in all respects would most likely just pull over let them do their circus act and move on.
That last sentence does give me pause,… In this country I should not have to get in a hassle with LEO to drive legally and safely down the road.
The driver did say he has the right to be secure in his person and property and did not give up his right to a search without a warrant or stated legal cause. As I say I would have lasted about three minutes.
PS. I’m sure the drivers camera made most of the difference. Without its presence, combined with the knowledgeable responses, I will bet you dollars to donuts the driver would have been a guest of Arcaipo (or brethren) for the evening. Which probably would have been my fate.