Homeland Security Assuming Broad Powers, Turning Vast Swaths of U.S. into “Constitution-Free Zone”

Barry Steinhardt,
Director, ACLU Technology & Liberty Program
Thursday, Oct 23, 2008

You’re driving along a remote, dusty road, when suddenly you come upon a border patrol checkpoint. There, agents demand to see your identity papers, and search your car. You are taken by surprise, because you know you haven’t wandered across the Texas-Mexico border. In fact, you’re quite sure of that, because you’re driving through rural Wisconsin countryside west of Green Bay. Even the Canadian border is more than 90 miles away.

This scene is not as far-fetched as you might want to believe. The government is turning vast swaths of our country into a “Constitution-Free Zone” in which U.S. Customs and Border Protection (CBP) is allowed to exercise extraordinary authority that would not normally be permitted under the Constitution. The government says that “the border” — where there is a longstanding view that the Constitution does not fully apply — actually stretches 100 miles inland from the nation’s “external boundary.” And increasingly, we are seeing DHS vigorously utilize that authority.

Today we held a press conference at the National Press Club here in D.C. to try to draw attention to this problem — and the fact that, as we showed, nearly two-thirds of the U.S. population live within this “Constitution-Free Zone.” That’s 197.4 million people.

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We calculated this using the most recent, 2007 numbers from the U.S. Census, and released a map showing the cities and states that are enveloped by this zone. It includes some of the largest metropolitan areas in the country: New York City, Boston, Chicago, Los Angeles and Portland, Oregon. States that are completely within this Constitution-Free Zone include Connecticut, Delaware, Florida, Hawaii, Maine, Massachusetts, Michigan, New Hampshire, New Jersey, and Rhode Island. When you say “border,” they think “all of New England.”

CBP has been setting up checkpoints far inland— on highways in states such as California, Texas and Arizona, and at ferry terminalsin Washington State. Typically, the agents ask drivers and passengers about their citizenship. People are also reporting that even after they provide passports or state driver’s licenses, CBP continues to interrogate them and try to pressure them into permitting a search.

At our press conference today in the National Press Club here in DC, two U.S. citizens described their experiences with CBP.

Vince Peppard, a retired social worker, told of being stopped and harassed by the border authorities at least 15 miles from the Mexico border with his wife, Berlant.

Craig Johnson, a music professor at a San Diego college, told how he participated in a peaceful demonstration near the border to protest against the destruction of a state park so that offense could be constructed along the U.S. border. CBP agents monitored the protest and collected the license plate information of those who participated. Since this protest, Mr. Johnson has twice crossed the U.S.-Mexico border and, each time, he has been pulled aside for additional screening. He was taken to another room, handcuffed and questioned. On his first crossing, he was also partially stripped and subjected to a body cavity search. A CBP agent also told Mr. Johnson that he was on an “armed and dangerous” list. Before the protest, Mr. Johnson crossed the U.S.-Mexico border numerous times without incident. It is difficult to believe that his subsequent harassment at the border is unrelated to his protest activity. If it is related, that would constitute a significant abuse.

Congress needs to hold hearings to investigate these egregious violations of Americans’ civil liberties, and then pass new laws protecting Americans’ rights.

I guarantee you that if these powers are not challenged, if the American people do not push back, sooner or later a factory worker in southern New Hampshire, a farmer in the Shenandoah Valley of Virginia, or yes, some guy driving across rural Wisconsin, will wake up to find that they have lost their right to go about their business, and travel around inside their own country, without interference from the authorities.