The following was written by ACLU of Massachusetts staff attorney Laura Rótolo.
When you walk around downtown Boston, Framingham or Worcester, have you ever felt like you're actually still at the border, trying to cross into the United States? Well, if you haven't, maybe you should.
In its zeal to protect our borders, the U.S. government has given itself powers to conduct border searches and overlook the rights of visitors, citizens, and legal U.S. residents, even when we are as far as 100 miles inside the actual border. This 100-mile-deep zone includes the entire state of Massachusetts and much of our neighboring states. In fact, two-thirds of the U.S. population lives within this 100-mile zone.
Our government has vast powers to protect U.S. borders. If you are trying to enter the United States, you can be searched, you can be refused entry, and you can be detained until being ejected from the country. Additionally, many of the constitutional rights that we take for granted inside the United States -- such as freedom from unreasonable searches, or the right to due process if you are going to be punished -- don't apply at the border.
By stretching the definition of the border, our government has effectively created a huge fictional zone in which it claims the right to act as if the Constitution doesn't apply. Consider these cases:
* At the ACLU of Massachusetts, we recently filed a lawsuit on behalf of a Sri Lankan survivor of torture. Our client fled the violence in his country, landing at Logan Airport, and asking for asylum. He was immediately taken into custody by the Department of Homeland Security to wait on the asylum decision, but because of complications, it has been almost two years and his case is still pending. During that entire time, he has been sitting in a jail in South Boston, and the government has argued that it can keep him locked up because he is still technically at the border with no constitutional rights. That's right -- even though he has been sitting in a jail cell in South Boston for almost two years, the government argues that he is still "at the border" trying to get in. Our lawsuit challenges this nonsensical notion.
* When it comes to travelers and their laptops, the government has claimed the right to go through your personal electronics and even to take them away. In Northern California, the government seized a traveler's laptop, kept it for six months, and performed a warrantless search on it. Using its border search power, the government claims that it can keep even U.S. citizens' laptops, phones or other devices as long as it deems necessary. The government argued that the laptop remained in a legal limbo where the Bill of Rights did not apply and no warrant was necessary. Fortunately, a federal judge recently rejected this notion.
* Our friends at the ACLU of Vermont have been fighting against excessive Homeland Security Checkpoints as far as 97 miles from the border. A few years ago, Customs and Border Patrol began traffic "checkpoints" on I-91 south of White River Junction. The stated purpose was to prevent terrorists from entering the country. Instead, agents were citing people for minor traffic infractions (like having an object hanging from the rearview mirror) or for minor immigration violations. Since the checkpoints started, the ACLU of Vermont has received many complaints about racial profiling -- border agents waiving white drivers through the checkpoint and stopping non-white drivers. It got so bad that some started calling it the "Whiteness Checkpoint."
None of this is an appropriate use of the government's border authority.
Yet this week, President Obama asked Congress for $500 million more for border security.This includes money for 1,000 new border patrol agents, scores of other federal law enforcement officers, and two additional aerial drones. Bowing to pressure from all sides, Obama's request is made to make the administration look tough on border security.
But it seems that many of these resources are being used not to stop terrorists and drug cartels, but in ways that violate the rights of people who have done nothing wrong.
We have every right to protect our borders from those who wish to harm the United States -- but the abuse of this power hurts us, too. Allowing the government to sweep away fundamental constitutional rights and protections 100 miles inside the country borders on madness, and it's time for Congress to say no.