On October 22nd, the ACLU kicked off a public campaign to draw attention to the proliferation of these checkpoints that are usually located within the 100-mile Constitution Free Zone that rings this once-free country.
Radley’s article does a good job addressing the issue but understates the number of internal DHS checkpoints currently in existence:
With 33 checkpoints now in operation, we’re not exactly to the point of “Ihre Papiere, bitte” Berlin yet, but the ACLU does warn that the area of the country 100 miles from every border and coastline would include about 190 million people, or nearly two-thirds of the U.S. population
The 33 checkpoints referenced above were the number of permanent Homeland Security checkpoints in operation several years ago. It doesn’t include the number of temporary, tactical, or roving checkpoints along secondary roads utilized by Customs & Border Protection to augment permanent checkpoint operations.
While the exact number of such temporary checkpoints in operation at any given time is unknown, it’s fairly clear they outnumber permanent checkpoints by a wide margin. I’ve been documenting my experiences at just such a checkpoint since January of 2008.
In its public release, the ACLU highlighted the cases of two individuals who have recently run afoul of Homeland Security and its checkpoints. The first, Craig Johnson, is an Associate Professor of Music in San Diego. His crime was daring to peacefully protest the construction of a border wall in San Diego. His punishment has been to be placed on a terrorist watch list resulting in his aggressive seizure & search by Customs & Border Protection agents every time he crosses the border.
The second individual was interviewed by the ACLU here:
In addition to this interview, I highlighted his experience at an internal checkpoint on this blog prior to the ACLU’s public campaign.
As part of its public release, the ACLU has published a fact sheet on the Constitution Free Zone. It’s reprinted below along with the text of the Reason article:
- Normally under the Fourth Amendment of the U.S. Constitution, the American people are not generally subject to random and arbitrary stops and searches.
- The border, however, has always been an exception. There, the longstanding view is that the normal rules do not apply. For example the authorities do not need a warrant or probable cause to conduct a “routine search.”
- But what is “the border”? According to the government, it is a 100-mile wide strip that wraps around the “external boundary” of the United States.
- As a result of this claimed authority, individuals who are far away from the border, American citizens traveling from one place in America to another, are being stopped and harassed in ways that our Constitution does not permit.
- Border Patrol has been setting up checkpoints inland — on highways in states such as California, Texas and Arizona, and at ferry terminals in Washington State. Typically, the agents ask drivers and passengers about their citizenship. Unfortunately, our courts so far have permitted these kinds of checkpoints – legally speaking, they are “administrative” stops that are permitted only for the specific purpose of protecting the nation’s borders. They cannot become general drug-search or other law enforcement efforts.
- However, these stops by Border Patrol agents are not remaining confined to that border security purpose. On the roads of California and elsewhere in the nation – places far removed from the actual border – agents are stopping, interrogating, and searching Americans on an everyday basis with absolutely no suspicion of wrongdoing.
- The bottom line is that the extraordinary authorities that the government possesses at the border are spilling into regular American streets.
Much of U.S. population affected
- Many Americans and Washington policymakers believe that this is a problem confined to the San Diego-Tijuana border or the dusty sands of Arizona or Texas, but these powers stretch far inland across the United States.
- To calculate what proportion of the U.S. population is affected by these powers, the ACLU created a map and spreadsheet showing the population and population centers that lie within 100 miles of any “external boundary” of the United States.
- The population estimates were calculated by examining the most recent US census numbers for all counties within 100 miles of these borders. Using numbers from the Population Distribution Branch of the US Census Bureau, we were able to estimate both the total number and a state-by-state population breakdown. The custom map was created with help from a map expert at World Sites Atlas.
- 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.
- Nine of the top 10 largest metropolitan areas as determined by the 2000 census, fall within the Constitution-free Zone. (The only exception is #9, Dallas-Fort Worth.) Some states are considered to lie completely within the zone: Connecticut, Delaware, Florida, Hawaii, Maine, Massachusetts, Michigan, New Hampshire, New Jersey, New York, Rhode Island and Vermont.
Part of a broader problem
- The spread of border-search powers inland is part of a broad expansion of border powers with the potential to affect the lives of ordinary Americans who have never left their own country.
- It coincides with the development of numerous border technologies, including watch list and database systems such as the Automated Targeting System (ATS) traveler risk assessment program, identity and tracking systems such as electronic (RFID) passports, the Western Hemisphere Travel Initiative (WHTI), and intrusive technological schemes such as the Secure Border Initiative Network (SBINet) or “virtual border fence” and unmanned aerial vehicles (aka “drone aircraft”).
- This illegitimate expansion of the extraordinary powers of agents at the border is also part of a general trend we have seen over the past 8 years of an untrammeled, heedless expansion of police and national security powers without regard to the effect on innocent Americans.
- This trend is also typical of the Bush Administration’s dragnet approach to law enforcement and national security. Instead of intelligent, competent, targeted efforts to stop terrorism, illegal immigration, and other crimes, what we have been seeing in area after area is an approach that turns us all into suspects. This approach seeks to sift through the entire U.S. population in the hopes of encountering the rare individual whom the authorities have a legitimate interest in.
If the current generation of Americans does not challenge this creeping (and sometimes galloping) expansion of federal powers over the individual through the rationale of “border protection,” we are not doing our part to keep alive the rights and freedoms that we inherited, and will soon find that we have lost some or all of their right to go about their business, and travel around inside their own country, without interference from the authorities.
Radley Balko’s Reason Article:
Radley Balko | October 22, 2008, 8:03pm
In the 1976 case U.S. v. Martinez-Fuerte, the U.S. Supreme Court ruled that contra the Fourth Amendment, the government can set up roadblock checkpoints within 100 miles of the nation’s borders in order to check for illegal immigrants and smuggling. The Court ruled that if the stops are brief, limited to that purpose, and not fishing expeditions, the minimal invasion to personal privacy is outweighed by the government’s interest in protecting the border.
The ACLU says that since September 11, 2001, the government has been steadily stretching the limits of Martinez, to the point where the Department of Homeland Security is using that case and the terrorism threat to conduct more thorough, more invasive searches at dozens of checkpoints across the country. With 33 checkpoints now in operation, we’re not exactly to the point of “Ihre Papiere, bitte” Berlin yet, but the ACLU does warn that the area of the country 100 miles from every border and coastline would include about 190 million people, or nearly two-thirds of the U.S. population (see map below).
Moreover, post-9/11, the courts have been pretty deferential to increasingly invasive searches the government says are necessary for national security purposes. For example, federal courts have given the okay to airport seizures and thorough searches of laptops and other electronic devices belonging to people returning from abroad. Such searches can be conducted with no individualized suspicion at all. Some of those subjected to them have said it took weeks for the government to return their computers.
Should the courts uphold these increasingly invasive “border searches” under some vague national security exception, I don’t think it’s too much of an exaggeration to say that the Fourth Amendment would be close to non-existent for a large portion of the country.
Links to additional articles addressing this issue appear below:
- ACLU Assails 100-Mile Border Zone as ‘Constitution-Free’ – Wired Magazine
- ACLU Creates Map of US “Constitution-Free Zone” – Slashdot discussion
- 100-mile radius raises debate over Constitution, civil rights – Medill Reports