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vincentML -> RE: Can you hear me now? NSA & Verizon can (6/6/2013 6:00:40 PM)
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The notion of a Constituitonal Free Zone is somewhat clouded. In 2006 the ACLU published a complaint about such a zone and Wired carried the story in 2008. It is true that Customs and Immigration (DHS) have a Fourth Amendment exemption to search and seize at the border. And the "border" was extended inland to cover major international airports and the immediate vicinities. Terribly misleading in the ACLU article is the statement: Using data provided by the U.S. Census Bureau, the ACLU has determined that nearly 2/3 of the entire US population (197.4 million people) live within 100 miles of the US land and coastal borders.
The government is assuming extraordinary powers to stop and search individuals within this zone. This is not just about the border: This " Constitution-Free Zone" includes most of the nation's largest metropolitan areas.
The suggestion that DHS can stop and search 197.4 million citizens without cause is rank nonsense. The exemption applies ONLY to people crossing the border.
This from the Wired article:
DHS spokesman Jason Ciliberti says the ACLU’s description of the zone as "Constitution-Free" couldn’t be further from the truth and that the check points follow rules set by Supreme Court rulings.
"We don’t have the ability to just set up checkpoints willy-nilly," Ciliberti said. "The Supreme Court has determined that brief investigative encontuers do not constitute a serach or seizure."
When citizens or visa holders encounter a checkpoint, most are waived on after showing identification, but if an agent suspects the person is not lawfully in the country, the agent can detain the person until the agent’s investigation is satisfied.
The government has long had the power to set up such check points, but has recently expanded the number of permanent and ‘tactical’ check points and deployed them in areas they hadn’t before — such as near the Canadian border.
The courts, however, are not on the ACLU’s side — and have regularly ruled that the Fourth Amendment’s protections don’t extend to the border area, airport screening or even to laptops at the border.
END of WIRED extraction.
From a February article in the Blog of the ConstitutionCenter.Org we get this clarification:
Legally, the 100-mile-wide region is called the “extended border” of the U.S., as defined by Title 8 of the Federal Code of Regulations. There is also something called the “functional equivalent” border, which is the area around international airports in the interior region of the U.S.
The DHS ruling from last Friday said its “warrantless searches” applied to the U.S. “border and its functional equivalent,” with no mention of the extended 100-mile border.
Two analysis papers from the Congressional Research Service from 2009 offer some legal insight into what tactics agents can follow within the 100-mile-wide extended border, and why the distinction between the extended border and the other two borders is important.
Searches within the 100-mile extended border zone, and outside of the immediate border-stop location, must meet three criteria: a person must have recently crossed a border; an agent should know that the object of a search hasn’t changed; and that “reasonable suspicion” of a criminal activity must exist, says the CRS. (The service had done the legal analyses to prepare Congress members for legislation.)
“Although a search at the border’s functional equivalent and an extended border search require similar elements, the extended border search entails a potentially greater intrusion on a legitimate expectation of privacy. Thus, an extended border search always requires a showing of ‘reasonable suspicion’ of criminal activity, while a search at the functional equivalent of the border may not require any degree of suspicion whatsoever,” the CRS says.
The fact that agents need to show “reasonable suspicion” outside direct border stops and airports puts their actions closer to the scope of the Fourth Amendment, says the CRS.
“The Fourth Amendment mandates that a search or seizure conducted by a government agent must be ‘reasonable.’ As a general rule, courts have construed Fourth Amendment reasonableness as requiring probable cause and a judicially granted warrant. Nonetheless, the Supreme Court has recognized several exceptions to these requirements, one of which is the border search exception.”
It is egregiously misleading (to say the least) to suggest that 197 million citizens can be searched without heed to the Fourth Amendment within a 100 mile Constitutionally-free zone. the map shown on the ACLU page (and I have been a big fan) is laughable. A graphic distortion of reality.
If Ms Poitras was searched and detained 40 times she is clearly being harrassed and I see no reason why the ACLU does not represent her in court.
Otherwise, there is just not much new here in your conspiracy scenario, Jeff. Sorry, no sale. And although you may not have meant it as such, I take your offer of sympathies as somewhat condescending. I hope I am wrong on that.
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