Bill of Rights Rollback in the US Borderlands

Todd Miller and Peter Van Buren, July 16, 2014

Originally posted at TomDispatch.

You’re not in the United States. Oh sure, look around at the fog lifting over the New England countryside or the diamond deserts of Arizona, but this land isn’t your land, not anymore. It’s a place controlled by U.S. Customs and Border Protection (CBP) and your constitutional rights do not apply on their territory. CBP can, and does, detain Americans, search them without warrant, and physically mistreat them in what has become, for our 9/11 sins, a Post-Constitutional legal purgatory. You are neither outside their grasp in a foreign land, nor protected from them by being inside America.

The concept that the Constitution does not apply at America’s borders is not new, particularly in relation to Fourth Amendment protections against search and seizure. (In this context, “seizure” often takes the form of detention, as well as the more traditional concept of taking physical possessions away.) Once upon a time, the idea was that the United States should be able to protect itself by examining people entering the country. Thus, routine border seizures and searches without warrants are constitutionally “reasonable.” Fair enough. The basic rules, in fact, go back to 1789.

But the fairness of the old rules no longer applies, particularly in the face of a constantly metastasizing CBP, anxious to expand its place in the already expansive Homeland Security ecosystem. On its website, CBP boasts of making 1,100 arrests a day as, in its own words, the “guardians” of America. Do the math: that’s 401,500 a year, and those arrests are not limited to dangerous foreigners. Americans who hold certain beliefs and affiliations are swept up as well, whether they are prominent journalists, activists, or simply (as in today’s piece) angry spouses of men beaten nearly to death by CBP agents. The agency now insists that its jurisdiction does not end at the physical border, the line on the map that separates say the United States from Mexico, but extends 100 miles inland.

Building on his successful new book, Border Patrol Nation: Dispatches from the Front Lines of Homeland Security, TomDispatch regular Todd Miller brings us more examples of CBP lawlessness and brutality, while asking crucial questions about its larger meaning to our nation. Get ready to be scared. If you live near the border, cross the border after a trip abroad, or attract the attention of roving CBP patrols in New England or Arizona within 100 miles of the line, this land belongs not to you and me, but in Post-Constitutional America, increasingly to our so-called guardians. ~ Peter Van Buren

Border Wars in the Homeland

By Todd Miller

Shena Gutierrez was already cuffed and in an inspection room in Nogales, Arizona, when the Customs and Border Protection (CBP) agent grabbed her purse, opened it, and dumped its contents onto the floor right in front of her. There couldn’t be a sharper image of the Bill of Rights rollback we are experiencing in the U.S. borderlands in the post-9/11 era.

Tumbling out of that purse came Gutierrez’s life: photos of her kids, business cards, credit cards, and other papers, all now open to the official scrutiny of the Department of Homeland Security. There were also photographs of her husband, Jose Gutierrez Guzman, whom CBP agents beat so badly in 2011 that he suffered permanent brain damage. The supervisory agent, whose name badge on his blue uniform read “Gomez,” now began to trample on her life, quite literally, with his black boots.

“Please stop stepping on the pictures,” Shena asked him.

A U.S. citizen, unlike her husband, she had been returning from a 48-hour vigil against Border Patrol violence in Mexico and was wearing a shirt that said “Stop Border Patrol Brutality” when she was aggressively questioned and cuffed at the CBP’s “port of entry” in Nogales on that hot day in May. She had no doubt that Gomez was stepping all over the contents of her purse in response to her shirt, the evidence of her activism.

Perhaps what bothered Gomez was the photo silkscreened onto that shirt – of her husband during his hospitalization. It showed the aftermath of a beating he received from CBP agents. His head had a partially caved-in look because doctors had removed part of his skull. Over his chest and arms were bruises from Tasering. One tooth was out of place, and he had two black eyes. Although you couldn’t see them in the photo, two heavily armed Homeland Security agents were then guarding his hospital door to prevent the father of two, formerly a sound technician and the lead singer of a popular band in Los Angeles, from escaping – even in his comatose state.

Jose Gutierrez Guzman’s has become an ever more common story in an American age of mass expulsions. Although he had grown up in the United States (without papers), he was born in Mexico. After receiving a letter requesting his appearance, he went to the Immigration and Customs Enforcement building in Los Angeles and was promptly arrested and deported. Customs and Border Protection agents later caught him crossing the border in San Luis, Arizona, near Yuma, in an attempt to reunite with his wife and children.

“Stop… stepping… on… the… pictures,” Shena insisted.

As she tells the story, Agent Gomez looked at her shirt for a second, then looked up at her and said, “You have that mentality about us. You think we go around abusing.” His tone remained faux-friendly, but his boots didn’t – and neither did those cuffs another CBP agent had put on her. Forcing her hands behind her back, they cut uncomfortably into her wrists. They would leave deep red circular marks.

On display was a post-9/11 world in which the usual rights meant to protect Americans from unreasonable search and seizure and unwanted, as well as unwarranted, interrogation were up for grabs.

While such constitutionally questionable intrusions into people’s privacy have been increasing at border crossings in the post-9/11 years, this type of hardline border policing has also moved inland. In other words, the sort of intrusions that once would have qualified as unconstitutional have moved in startling numbers into the interior of the country.

Imagine the once thin borderline of the American past as an ever-thickening band, now extending 100 miles inland around the United States – along the 2,000-mile southern border, the 4,000-mile northern border, and both coasts – and you will be able to visualize how vast the CBP’s jurisdiction has become. This “border” region now covers places where two-thirds of the U.S. population (197.4 million people) live. The ACLU has come to call it a “constitution-free zone.” The “border” has by now devoured the full states of Maine and Florida and much of Michigan.

In these vast domains, Homeland Security authorities can institute roving patrols with broad, extra-constitutional powers backed by national security, immigration enforcement, and drug interdiction mandates. There, the Border Patrol can set up traffic checkpoints and fly surveillance drones overhead with high-powered cameras and radar that can track your movements. Within 25 miles of the international boundary, CBP agents can enter a person’s private property without a warrant. In these areas, the Homeland Security state is anything but abstract. On any given day, it can stand between you and the grocery store.

“Border Patrol checkpoints and roving patrols are the physical world equivalent of the National Security Agency,” says attorney James Lyall of ACLU Arizona puts it. “They involve a massive dragnet and stopping and monitoring of innocent Americans without any suspicion of wrongdoing by increasingly abusive and unaccountable federal government agents.”

Before she was so unceremoniously stopped and held, Shena Gutierrez shared the story of her husband at that 48-hour vigil. It was another story of the kind of pervasive abuse reported by people in the 100-mile zone. There were no cameras that night to record how 11 agents “subdued” Jose Gutierrez Guzman, as the CBP put it in its official report on the incident. Its claim: that Jose “struck his head on the ground,” a way perhaps of accounting for the hospital’s eventual diagnosis of “blunt force trauma.”

Considering the extent of Jose’s injuries, that CBP report is questionable indeed. Many Border Patrol agents now use the term “tonk” – the sound a flashlight supposedly makes when it bangs against someone’s head – as their way of describing border-crossers. Jose was also repeatedly “shot” with an “electronic control device,” aka a Taser. He was so badly beaten that, more than three years later, he still suffers seizures.

“Stop stepping on my pictures!” Gutierrez insisted again. But much like the CBP’s official complaint process, the words were ignored. The only thing Gomez eventually spat out was, “Are you going to get difficult?”

When Shena Gutierrez offered me a play-by-play account of her long day, including her five-hour detainment at the border, her voice ran a gamut of emotions from desperation to defiance. Perhaps these are the signature emotions of what State Department whistleblower Peter Van Buren has dubbed the “Post-Constitutional Era.” We now live in a time when, as he writes, “the government might as well have taken scissors to the original copy of the Constitution stored in the National Archives, then crumpled up the Fourth Amendment and tossed it in the garbage can.” The prototype for this new era, with all the potential for abuse it gives the authorities, can be found in that 100-mile zone.

A Standing Army

The zone first came into existence thanks to a series of laws passed by Congress in the 1940s and 1950s at a time when the Border Patrol was just an afterthought with a miniscule budget and only 1,100 agents. Today, Customs and Border Protection has more than 60,000 employees and is by far the largest federal law enforcement agency in the country. According to author and constitutional attorney John Whitehead, the Department of Homeland Security (DHS), created in 2002, is efficiently and ruthlessly building “a standing army on American soil.”

Long ago, President James Madison warned that “a standing military force, with an overgrown Executive, will not long be safe companions to liberty.” With its 240,000 employees and $61 billion budget, the DHS, Whitehead points out, is militarizing police units, stockpiling ammunition, spying on activists, and building detention centers, among many other things. CBP is the uniformed and most visible component of this “standing army.” It practically has its own air force and navy, an Office of Air and Marine equipped with 280 sea vessels, 250 aircraft, and 1,200 agents.

On the border, never before have there been so many miles of walls and barriers, or such an array of sophisticated cameras capable of operating at night as well as in the daylight. Motion sensors, radar systems, and cameras mounted on towers, as well as those drones, all feed their information into operational control rooms throughout the borderlands. There, agents can surveil activity over large stretches of territory on sophisticated (and expensive) video walls. This expanding border enforcement regime is now moving into the 100-mile zone.

Such technological capability also involves the warehousing of staggering amounts of personal information in the digital databases that have ushered in the Post-Constitutional Era. “What does all this mean in terms of the Fourth Amendment?” Van Buren asks. “It’s simple: the technological and human factors that constrained the gathering and processing of data in the past are fast disappearing.”

The border, in the post 9/11 years, has also become a place where military manufacturers, eyeing a market in an “unprecedented boom period,” are repurposing their wartime technologies for the Homeland Security mission. This “bring the battlefield to the border” posture has created an unprecedented enforcement, incarceration, and expulsion machine aimed at the foreign-born (or often simply foreign-looking). The sweep is reminiscent of the operation that forced Japanese (a majority of them citizens) into internment camps during World War II, but on a scale never before seen in this country. With it, unsurprisingly, has come a wave of complaints about physical and verbal abuse by Homeland Security agents, as well as tales of inadequate food and medical attention to undocumented immigrants in short-term detention.

The result is a permanent, low-intensity state of exception that makes the expanding borderlands a ripe place to experiment with tearing apart the Constitution, a place where not just undocumented border-crossers, but millions of borderland residents have become the targets of continual surveillance. If you don’t see the Border Patrol’s ever-expanding forces in places like New York City (although CBP agents are certainly present at its airports and seaports), you can see them pulling people over these days in plenty of other spots in that Constitution-free zone where they hadn’t previously had a presence.

They are, for instance, in cities like Rochester, New York, and Erie, Pennsylvania, as well as in Washington State, Vermont, Florida, and at all international airports. Homeland Security officials are scrutinizing people’s belongings, including their electronic devices, from sea to shining sea. Just ask Pascal Abidor, an Islamic studies doctoral student whose computer was turned on by CBP agents in Champlain, New York.

When an agent saw that he had a picture of a Hezbollah rally, she asked Abidor, a U.S. citizen, “What is this stuff?” His answer – that he was studying the modern history of the Shiites – meant nothing to her and his computer was seized for 10 days. Between 2008 and 2010, the CBP searched the electronic devices of more than 6,500 people. Like many of us, Abidor keeps everything, even his most private and intimate conversations with his girlfriend, on his computer. Now, it’s private no longer.

Despite all this, the message politicians and the media generally offer is that the country needs more agents, new techno-gadgets, and even more walls for our “safety.” In that context, President Obama on July 7th asked Congress for an additional $3.7 billion for “border security.”

Since last October, in what officials have called a “humanitarian crisis,” 52,000 unaccompanied children, mostly from Central America, have been apprehended by Border Patrol agents. News about and photos of some of those children, including toddlers, parentless and incarcerated in warehouses in the Southwest, have led to a flood of articles, many claiming that border security is “strained.” A Border Patrol Union representative typically claimed that the border is “more porous than it’s ever been.” While such claims are ludicrous, all signs point to more money being packed aboard what Whitehead has called a “runaway train.”

Make no bones about it, every dollar spent this way works not just to keep others out of this country, but to lock American citizens into a border zone that may soon encompass the whole country. It also fortifies our new domestic “standing military force” and its rollback of the Bill of Rights.

Resistance Inside the 100-Mile Zone

The first thing Cynthia (a pseudonym) asks the supervisory agent with the green Border Patrol hat and wrap-around sunglasses who stops her car is: “Can I have your name and agent number please?” She’s been halted at a checkpoint approximately 25 miles north of the U.S.-Mexican border on a road running east-west-running near the small town of Arivaca, Arizona, where she lives.

The agent pauses. He looks like he’s swallowed a hornet before he barks, “We ask the questions here first, okay? Do you have some ID on you?”

This starts a tense exchange between the two of them that she videotaped in its entirety. She is only one of many challenging the omnipresence and activities of the Border Patrol in the heart of the 100-mile zone. Like many locals in Arivaca, she is sick of the checkpoint, which has been there for seven years. She and her neighbors were fed up with the obligatory stop between their small town and the dentist or the nearest bookstore. They were tired of Homeland Security agents scrutinizing their children on their way to school. So they began to organize.

In late 2013, they demanded that the federal government remove the checkpoint. It was, they wrote in a petition, an ugly artifact of border militarization; it had, they added, a negative economic impact on residents and infringed on people’s constitutional rights. At the beginning of 2014, small groups from People Helping People in the Border Zone – the name of their organization – started monitoring the checkpoint several days a week.

This Arivaca Border Patrol road barricade, one of at least 71 in the southwest, functions as a de facto enforcement zone away from the border. In Border Patrolese, it’s “an additional layer in our Defense in Depth strategy.” This particular checkpoint isn’t exactly impressive – just a portable trailer with an attached tarp for shade, but it still qualifies, according to one of the Patrol’s informational brochures, as “a critical enforcement tool for securing the nation’s borders against all threats to our homeland.”

The agents manning it stop every car on the road, do a quick visual check of its interior, and ask the driver and passengers their citizenship. There are also dogs available to sniff each car for traces of drugs or explosives. “Our enforcement presence along these strategic routes reduces the ability of criminals and potential terrorists to easily travel away from the border,” the brochure explains.

The Homeland Security surveillance gaze in the Southwest is, in fact, so pervasive that it has even nabbed singer Willy Nelson in Texas for marijuana possession. It detained 96-year-old former Arizona governor Raul Castro and made him stand in 100-degree heat for more than 30 minutes because a dog detected the radiation from his pacemaker. In the past three years in the Tucson sector, the Patrol has made more than 6,000 arrests and confiscated 135,000 pounds of narcotics at checkpoints.

But this is no longer just a matter of inland areas near the Mexican Border. A Border Patrol agent forced Vermont’s senior senator Patrick Leahy from his car at a checkpoint 125 miles south of the New York State border. The ACLU of Vermont unearthed a prototype plan for CBP to operate checkpoints to stop southbound traffic on all five highways through that New England border state.

On Sunday afternoons in Sodus, New York, about 30 miles east of Rochester, green-striped Border Patrol vehicles can sometimes be found parked in front of a laundromat which farmworkers (many undocumented) use. In Erie, Pennsylvania, agents wait at the Greyhound bus terminal or the Amtrak station to question people arriving in town. These are all places where the Border Patrol was all but unknown before 2005. In Detroit, simply being at a bus stop at four in the morning en route to work or fishing in the Detroit River is now “probable cause” for an agent to question you.

Or perhaps it is simply the color of your skin. Arrest records from both bus terminals and railway stations in Rochester, New York, show that of the 2,776 arrests agents made between 2005 and 2009, 71.2% were of “medium” complexion (likely of Latino or Arab background) and 12.9% “black.” Only 0.9% of those arrested were of “fair” complexion.

Back in Arivaca, the agent with the wraparound sunglasses tells Cynthia that she needs to get out of her car. Much like Senator Leahy, she responds that she doesn’t “understand why.”

“You don’t have to understand,” he says. “It’s for my safety. And yours. Do you understand that?”

Then his tone gains an angry edge. He clearly doesn’t like having his authority challenged. “We don’t have time for this. We have criminals here, okay? If you have a political or an emotional situation here” – he makes an emphatic chopping motion with his hand – “I don’t want to hear about it. I want to see your ID.” He pauses. “Now!”

The adrenaline is obviously pumping and he is about to edge up on the limits of what an agent can do, even with extra-constitutional powers. He thrusts his hand through the open window and into the car and unlocks it. With a yank, he pulls the door open from the inside. When Cynthia is out of the car, he asks, his voice rising, “What do you think we’re looking for here?”

“I don’t know,” Cynthia responds.

“That’s where I’m gonna educate you a little bit. Okay?”

“Okay,” she says.

“What happens through this checkpoint is that we catch smugglers of aliens, smugglers of drugs, child molesters, murderers, and everything else. Okay? Does that make sense?”

This rural area of Arizona, he insists as they stand under a vast cloudless blue sky, is infested with bandits, criminals, and drug dealers. “We have methamphetamine being made and manufactured,” the agent explains. “Do you think methamphetamine is a good thing?”

“Personally, no,” she says.

“Personally, I don’t think so either. I think they’re poisoning our world, okay? So when we ask you just to do something simple, like uncover something, do it! It’s a relief for us that it’s not something dangerous or something else.” By now, the agent is making the full-blown case for Homeland Security’s rollback of the Bill of Rights: the world’s a dangerous place, too dangerous for us not to have a free hand searching wherever we want whenever we want – and it’s your job to understand that new twenty-first-century American reality. He ends with a final dig at her for her initial resistance: “You’re destroying your rights, because what happens is, is that the criminals take your rights away, okay? Not us. We’re here to protect you.”

According to the ACLU’s Lyall, the fact is that the abuses of Customs and Border Protection in that Constitution-free zone are “massively underreported” and “far more prevalent than anyone has been able to document.” Many people, according to him, are simply afraid to come forward; others don’t know their rights.

In Shena Gutierrez’s case, she returned to the same Nogales “port of entry” with two other activists to lodge a complaint about the purse incident. When she refused to leave federal property (for which she now faces charges), the CBP arrested and detained her for hours. This time they did what she described as “an invasive body search.”

“I told them that I had not given my consent to be touched.” They nonetheless made her take off her wedding ring “for safety.” When she resisted, they said that they “would force it off her.” Again, the handcuffs cut into her wrists. This time, an agent kicked her in the ankle from behind. A female agent searched her thoroughly, from head to toe and in her private parts, because she “might have drugs or contraband or documents.”

As the agent groped her, she told me, she began to think yet again about what her husband had gone through. If this can happen to a U.S. citizen, she told me, “Imagine what happens to a person without documents.”

Imagine what can happen to anyone in a realm where, increasingly, anything goes, including the Constitution.

Todd Miller, a TomDispatch regular, has researched and written about U.S.-Mexican border issues for more than 10 years. He now writes on border and immigration issues for NACLA Report on the Americas and its blog “Border Wars,” among other places. His first book is Border Patrol Nation: Dispatches From the Front Lines of Homeland Security. You can follow him on twitter @memomiller and view more of his work at toddwmiller.wordpress.com.

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Copyright 2014 Todd Miller

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