A U.S. Citizen Was Detained While Trying to Pay for a Gift for His Daughter
theintercept.com
theintercept.com
https://en.wikipedia.org/wiki/Sovereign_immunity_in_the_Unit...
If the US government doesn't generally need sovereign immunity then it should be forced to surrender the right to exercise it or it'll be used in the worst way the first way.
I guess they could reverse that decision.
It’s a specific exception they are claiming, and I think most people feel that exception is being claimed too broadly.
It’s not a “constitution free zone.” Most of the constitution obviously and clearly still applies.
That said, it isn't usually exercised... but that sort of makes it worse since any usages of their elevated powers can be applied arbitrarily and without consistency which, IMO, is intensely worrying in a country where incarceration rates by race are so wildly out of balance with population proportions.
Driving in Queens doesn't give CBP the ability to pull you over and rip apart your car. Picking up someone at JFK may give them the ability for them to do so on the way home.
These are just indiscriminate sweeps being justified by the 100 mile border exception.
A CBP officer could yank you out of your car on the cross bronx expressway and then search the vehicle top to bottom and your legal recourse would be to hope that CBP feels bad and reimburses you somehow, you would be owed no legal damages because it isn't illegal.
This isn't hyperbole, it's actually that ridiculous.
From the Congressional Research Service: (https://fas.org/sgp/crs/homesec/RL31826.pdf, page 8)
> Under the “extended border search” doctrine, government officials may conduct a warrantless search beyond the border or its functional equivalent if (1) the government officials have a reasonable certainty that a border was crossed or there exists a “high degree of probability” that a border was crossed; (2) they also have reasonable certainty that no change in the object of the search has occurred between the time of the border crossing and the search; and (3) they have “reasonable suspicion” that criminal activity was occurring.
In online reporting, there is often significant confusion between the "Extended Border Area" (ie. the 100 mile zone) and the "Functional Equivalent of the Border" (ie. an airport customs zone).
The only new thing is the increased size of the sprawling bureaucracy of Customs and the Border Control, and the increased tempo of operations.
The real problem is the growth of executive power and the supine nature of the Congress and courts. This particular issue has attention due to the disgusting conduct of the current administration. We live in an era where the President believes that he posses banana republic like presidential immunity and executive privilege.
That’s why if the cops are violating your rights, you follow up in court.
And now an annoying aside. I really wish the ACLU was sincere in fighting this but they won't get any more of my money. I used to support the ACLU because these were the types of P1 issues they would battle. It seems in the last years it's faded to more social justice platform. Fine for them if that's what they believe are the most pressing issues of our time, but not my P1 constitutional concerns.
What's the point of anything if the government can railroad your 1st and 4th amendment rights? Are there good alternatives to the ACLU of yore?
Wait why are two cellphones suspicious? Work and personal phones are super common
Yeah no. That's not how border crossings work at all.
It would be pretty embarrassing if people going in, going out, and those who are there to visit the customs office weren't kept separate.
But then I'm only assuming that border crossings in the US work the same way as border crossings elsewhere. Maybe they're a clown fiesta instead. Who knows.
There's also a u-turn to return to America without passing Canadian customs on the Canada side, but you're going to still have to explain to the Americans why you're crossing. My money is on this being how it happened.
All of that aside, thinking about it more, it's kind of weird that they'd even ask him to go to the peace bridge to begin with instead of any other CBP point in the area
Kinda looks like you ignored the preceding sentence to look snarky.
Border agents should know which side they're facing and which direction those people are traveling in. If they're not, they're incompetent.
I disagree. I go to the airport (a border crossing) regularly to pick people up or drop people off and I definitely do not expect to be detained while they figure out who I am.
It also sounds like he ended up talking to the same people that process people actually crossing which makes this even more tricky.
I disagree. It's pretty clear that if you're outside the secure area through which those who arrive from the other country are herded, it's not at all tricky. The fact that the person he was talking to sometimes does the passport checking seems irrelevant.
This did not take place at an Airport, but rather, a Canadian/US border patrol station where according to someone else in this thread, a bus stop for border crossing exists.
It seems entirely reasonable to me that those agents are more vigilant against "I totally forgot my ID at home".
I maintain that simply being at a border crossing should not be grounds for detaining, but I do recognise that while a competent border crossing would make it impossible for someone to simply walk into the sterile "crossing zone" (and in airports such zones are usually pretty solid), this is not exactly a department known for competency.
Edit: Now that I consider it, it would seem really incompetent to just not notice which direction someone came from. This would allow people to cross the border all day with impunity. Pure speculation, but I bet they knew exactly which way he came from; they just felt like hassling some muslim looking guy without ID because they could (although I recognise that in the US, carrying a driving license everywhere seems to be a weird cultural phenomenon).
“Muslim looking guy” (what does that even mean?)
You don't have to agree with it to know what a "muslim looking guy" means. It means "someone whose looks Arabic or Persian, possibly with a beard". That's what it means. It's wrong, and it's prejudical, and in a strictly literal sense the words are inherently nonsensical, but that's what it means. I think you knew that already and for some passive-aggressive reason you're pretending you didn't.
Perhaps less "weird cultural phenomenon" and more "it's about the same size as a credit card", plus "it's probably the only broadly accepted government-issued ID you've got, so there's a variety of things things you might need it for, some of which you might not expect when you leave the house", resulting in "just leave it in your wallet or your handbag or wherever you carry such things".
If you're already generally leaving it with all the other miscellany you carry by default, it'd be more effort and more risk to take it out whenever you don't think you'd need it than to just leave it in your wallet/bag. If you're going to buy something, generally you'd have your wallet.
How do you handle such things, then? Honestly curious.
My wallet is quite small, I will say; I just have a rubber band around a couple of credit cards and potentially some folded banknotes, so I don't carry general "miscellany". I may be an outlier; if I'm going out to the shops or the gym or some such, I'll also leave my phone at home.
There is a big difference between going to an airport and passing through a secure area at that airport. He didn't try to cross the border.
The border search exception says that proximity to a border is inherently justification to search people without a warrant or probable cause, so the position of the Supreme Court is that agents don't have the normal burden of evidence for such actions. US v. Martinez-Fuerte went further and held that drivers can be directed to secondary screening without even reasonable suspicion.
The article is accurate but misleading when it discusses the conditions for these searches. (For instance, "calls into question whether the man, who is Muslim, was singled out because of his faith", "the border search exception is grounded in traversal of the border itself".) It's true that this raises questions about whether profiling was used, but the implicit "which is illegal" is false: the border search caselaw explicitly permits otherwise-illegal ethnic profiling. And "grounded in traversal" does not mean "pursuant to evidence of traversal": once again, Martinez suggests that searches to check whether someone has crossed are legal. Even "accumulated occupational biases" are a search rationale as 'training' and 'professional experience'.
There are a number of reasons this search still appears illegal, and the counsels interviewed for the story are understandably dubious But the boundaries of what's legal here extend well past what I find horrifying: searching people at the border without proof, explicitly on the basis of institutional opinions and racial profiling, has been upheld as legal.
More concretely, this idea of a 100 mile "exception" is utter nonsense, especially with significant population living within that area. But the Supreme Court identified with the power-desire to carry out such searches, and so performed enough logical gymnastics to create a plausible justification. And while its dubious conclusions certainly affect the practical ability of its victims to obtain straightforward justice, We The People should certainly not buy into their claims as universal when weighing whether The Government has run aground of its charter.
Does anyone know if/how this applies to international airports(as is the case in this story) , and/or our coasts?
https://www.aclu.org/sites/default/files/styles/scale_1200w/...
https://reason.com/2019/04/12/the-aclu-defends-the-rights-of...
http://online.wsj.com/public/resources/documents/20180621ACL...
Yeah no. Last time I had to go for work was quite unpleasant too.
The border agent was a complete moron and on a power trip. Kept going on about how American citizenship law doesn’t allow dual nationality. So no sir you can’t have two passports. Which I’m pretty sure is bullshit but I’m not gonna argue with a border agent. Was really hoping that he’d be bright enough to grasp that neither of the two passports he’s holding is bloody American though.
Two reasons: Internationally if you do this the official will (normally) pick the most favorable/least paperwork one.
For transparency - I have nothing to hide & wanted to play open cards. If he wants to run both through his systems that's cool - they'll both come back clean.
Me: Good morning sir. Here are my passports. My US ESTA Visa for entry into the USA was issued on the German one.
Him: You can't have two passports.
Me: I have dual citizenship, hence two passports.
Him: No US law doesn't allow you to have two passports.
Me - thinking...oh fk...this guy isn't grasping that US citizenship law doesn't apply to all 7.5 billion people on the world. Do I argue with this idiot? Nope...read enough horror stories on HN about US border arbitrarily detentions. US border agents can clearly do whatever the fuck they want. Went with a fake sorry sir won't happen again.
Oh and this is for a white male in a business suit for a business meeting with a company that's on the HN frontpage on a fuckin German passport speaking perfect English. I dread to think what the experience is like for someone more ahem diverse.
Yeah, don’t do that. When interacting with the government, you give them what they need and no more.
Sounds like you got a really stupid CBP agent.
Gov needs to decide. They can't penalize me for not being transparent (e.g. encrypting docs and refusing to hand over password at border) and at the same time punishing me for being transparent (like in this example).
Fuckin decide what you want....
No that's 100% wrong and provably so (see below). You absolutely have to carry all because there are situations where you'll legally need a mix.
Using my example: South African and EU passport. Suppose I'm flying from SA to Spain.
Airline desk: They want the EU passport. Because they get screwed if they fly someone into the EU that has no right being there.
Outbound immigration desk: Has to be SA passport. It's 100% ILLEGAL for me to present the EU one here - under fine or imprisonment
Inbound in Spain: They'll want to see the EU one because the SA one doesn't have a suitable visa stamp.
My "I presented both" comment is based on an observation that generally playing open cards with officials will result in them selecting the most favourable one. e.g. Iceland won't tell a German "oh we see you also have an afghan passport so you can't enter". Plus I like to play open cards. I have nothing to hide. You want to check both passports...go for it.
I'd directly link you but can't see a way to do so on hn
> This time, however, when he arrived at the bridge office as instructed, carrying a handwritten note from the original customs office, the man, a U.S. citizen, was detained and searched by Customs and Border Protection, he said. His phones were seized and his car rifled through. His father and cousin, who had been waiting in the vehicle, were themselves detained, ordered into the office to answer questions about their national backgrounds.
The fact that the man is a US citizen is interposed into an otherwise chronological narrative to make the reader evaluate the reasonableness of the border agents’ actions against information the border agents do not have.
To rewrite it as you suggest is to impose a CBP perspective, and that post-facto justification seems much more biased than what is written.
All that said, I think it's quite reasonable to favor the viewpoints of the dis-empowered, as the opposite approach would serve to reinforce any existing tyranny. The government is a large organization that has quite a lot of resources at it's fingertips - a private citizen... not so much.
That part doesn’t make sense.
I’m thinking he wanted to avoid brokerage charges by brokering himself, and needed paperwork from DHL to be signed by customs.
How would borders work if CBP was simply required to accept people’s unsubstantiated assertion that they were citizens who just forgot their ID?
Hold on. Nobody objects to citizens having to show identification or risk detention when crossing the border. The issue is that the man wasn't crossing the border.
Borders would work just fine if CBP could only require identification at the border. In fact, I suspect if you were to poll Americans, most probably think that this is already the case. That's why this was an issue to begin with: presumably if the man had known he was going to be detained if he didn't bring his ID, he would have done that.
It's like if you went to the DMV to take a driving test, having forgotten your ID at home, and instead of telling you to come back with your ID the DMV staff took you into custody. You'd be pretty outraged, citizen or not.
No they wouldn't. In many cases it's impossible to put a border checkpoint at the literal border. That's why they're often at choke points in the transportation system near borders.
I think there's a reasonable debate to be had about whether those choke points should be on highways dozens of miles from the literal border. That's not the situation here.
> In fact, I suspect if you were to poll Americans, most probably think that this is already the case. That's why this was an issue to begin with: presumably if the man had known he was going to be detained if he didn't bring his ID, he would have done that.
How people expect border crossings to work has no relevance. The question is what is an "unreasonable" search and seizure under the fourth amendment. The Constitution uses the fuzzy term "unreasonable" precisely because it acknowledges the legitimate need of the government to search and detain people without a warrant. Effectuating the nation's sovereign right to control its borders is one of those reasons. A rigid mechanical rule that only permits searches of people as they cross the literal border cannot be reconciled with the much more--well, reasonable--language the fourth amendment uses.
The fact that nobody expects to be detained for the equivalent of a DMV trip is a good indication that this was "unreasonable" per the plain meaning of the word. Maybe case law says otherwise. But ask a "reasonable" person on the street what the appropriate response of a customs agent to someone (citizen or not) who forgot their ID to take care of some bureaucratic hurdle on a package is, especially when the agency was supposed to be aware of the person's arrival (note the mention of the email in the article). That's what I care about.
I should mention, by the way, that the pedestrian lane at a US-Canada border crossing typically has a queue on the Canada side, and the border agent calls groups in one-by-one, just as at an airport. I have no idea how someone just trying to interact with customs, who drove up and parked their car on the US side, could be confused with someone trying to enter the US. It's worth looking at a map of the Peace Bridge [1]. This isn't a checkpoint some ways away from the border; it's a road with one way into the US, through the checkpoint (and the Niagara River in between the two countries!) Unless you have a flying car, there is no way you could end up with a car on the US side without having already gone through border security. The incompetence itself is ridiculous.
The perspective of when CBP could prove this to themselves is irrelevant if they didn't have a cause to detain in the first place.
On the other hand, I think the headline and the tone of the article definitely want me to judge this as "bad" on the part of the border patrol. Indeed, I strongly believe in personal privacy and due process.
However, there is a fact buried in the article that makes this a non-routine pickup indeed:
"""He was asked for his identification in order to pay the small duty fee for his daughter’s gifts, and only then realized that he’d left his wallet at home. When he explained this, that he’d made an honest mistake and wanted only to pay the routine duty owed and depart, he was told that in fact he wasn’t permitted to leave."""
So again, I agree in general that the privacy protections afforded to U.S. citizens are very important; but, I am not so surprised after reading this that things went sideways.
It seems to me, many government agencies and employees are used to things going a certain way, and as soon as something unexpected happens, they clamp down and things can get a lot more serious.
A few years ago I was flying domestically between two states, and the fancy bomb detection thing flagged me. Of course, I wasn't carrying anything remotely explosive. Nonetheless, I was taken to a back room with a supervisor and two regular homeland security agents. I was told this time they would search my bag and scan me again. If it came back negative, I would be free to go. If it came back positive, they would conduct a strip search. Thankfully, it came back negative.
I nearly missed my flight, it was incredibly terrifying in the moment, but I didn't feel like my rights were violated. According to the agents, the most likely cause was that I had used hand sanitizer prior to getting in the security line.
Back to the article -- personally, I'm very interested in the results of the court proceedings, but unclear how to keep track of them.
This guy wasn't traveling, and therefore had zero legal requirement to produce ID.
By your own metric, he required ID, because he drove to the border patrol station.
Which he knew he needed his ID for, because he had done so many times before.
The point I am making is simply that it is not so surprising to me that when things go outside of the normal process, things may go sideways when dealing with potentially hostile government agents.
In the 100 mile zone, they definitely have to have a defensible "reasonable suspicion" of criminal activity before they can stop & search someone.
Edit: Ha! The truth, as ever, ain't too popular.
This article mentions an instance where they colluded with local LE to harass citizens near a marijuana festival. Also deportable arrests are abysmally low, whereas their drug related arrests are absurdly high. It really sounds like they're a branch of DEA.