Hacker News Reader

Comment by tptacek | Hacker News Reader

The inalienable right to re-entry as a citizen is an interesting point that I hadn't thought of before. I'm glad he went through all this drama so we could think about that.

I worry about his notion of having an inalienable right not to answer questions, though. The limits to your rights at the nation's borders can be surprising. Can border police deny you entry into the country? It seems, on reflection, that they cannot. Can border police arrest you, detain you for long periods of time, and book you for crimes that you may in fact be convicted of? I worry that the answers to this question aren't as crisply aligned with this guy's libertarianism as he hopes.

View on HN

his notion of having an inalienable right not to answer questions, though

/His/ notion?

Can border police arrest you, detain you for long periods of time, and book you for crimes that you may in fact be convicted of? I worry that the answers to this question aren't as crisply aligned with this guy's libertarianism as he hopes.

He seems more the kind of person to make the answers align with his view, rather than hope they already do.

Throughout the United States, you have an almost unlimited right to be free from searches by law enforcement absent probable cause that can be demonstrated in court.

Except:

* This doesn't apply at the border.

* Regardless of whether the police have a right to search you, anything you do to obstruct a police search can be used as the basis of an orthogonal criminal charge.

Similarly, throughout the United States, you have an almost unrestricted right not to answer questions from law enforcement.

I ask:

* Accepting that the outcome of not cooperating cannot be denial of reentry, to what extent does this principle apply at the border? The right to be free of unreasonable search is at the core of the bill of rights, and the word "reasonable" seems to mean "all bets are off at the border".

* Regardless of whether police have a right to question you, things you do to obstruct them may be the basis of orthogonal criminal charges. For instance, Terry stops, Hiibel, &c.

Generally, as an avid civil liberties enthusiast with zero legal qualifications, my perception is that your rights are at their practical zenith in a courtroom, and at their nadir in a confrontation with on-duty law enforcement.

"Regardless of whether the police have a right to search you, anything you do to obstruct a police search can be used as the basis of an orthogonal criminal charge."

No--you cannot ever be charged or convicted on the basis of asserting your rights. Saying "you may not search my house" is not grounds for a search warrant, and exercising your fifth amendment right against self-incrimination in a trial is not grounds for conviction.

Physically or otherwise obstructing an actual police search in progress can be illegal or serve as probable cause, but asserting your rights never is.

> No--you cannot ever be charged or convicted on the basis of asserting your rights.

You can, however, be legally required to give cops your full, legal name. And you may also be required to say that you are invoking your right to remain silent (rather than simply keeping your mouth shut the whole time). Both have been subject to litigation recently.

You assert that this does not apply at the border, but you miss the fact that nowhere in the constitution are these rights set up as exceptions "near borders with other states". All of the amendments that make up the bill of rights are absolute statements, thruout the country.

I think that the legal concept is that "airside" at the airport and the no-man's-land are not proper US soil but some kind of quasi-international place (which is also why foreign citizens are allowed to wander there without visas if they have connecting flights and why you can buy duty-free merchandise there in countries where that's relevant). There's probably a name for this.

So if you walk up to the desk, you're standing on non-US soil and the desk guy is standing on US soil and trying to decide whether to let you across to the other side.

You'll note that the Constitution doesn't actually state where the borders of US soil are.

> inalienable right to re-entry as a citizen

Yes, for which he cites a trial court in Puerto Rico. Very convincing...

I'm not saying he's wrong, but isn't there binding authority on this point? Instead of just something that's only relevant *inside Puerto Rico"?

Reply on news.ycombinator.com