Lest you think there's nothing at stake when people decide how much leeway to give the government to search, question and monitor, here's Digby, Mission Creeps — The New Surveillance State, with pointers to two articles which when read together give you a good idea of the rather discouraging state of play: Glenn Greenwald, The Obama administration's war on privacy and a little case study, Daniel Rubin, An infuriating search at Philadelphia International Airport.
Category Archives: Law: Right to Travel
For some interesting stuff about a US Citizen's almost-never-exercised right to remain silent when re-entering the United States, and the punitive responses it incites from our public servants, see Paul Karl Lukacs, I Am Detained By The Feds For Not Answering Questions and the sequels, 10 Brief Responses To 700 Comments About Refusing To Answer Questions At Passport Control and More Law: Refusing To Answer Questions At U.S. Passport Control.
Here's how it begins:
I was detained last night by federal authorities at San Francisco International Airport for refusing to answer questions about why I had travelled outside the United States.
The end result is that, after waiting for about half an hour and refusing to answer further questions, I was released — because U.S. citizens who have produced proof of citizenship and a written customs declaration are not obligated to answer questions.
* * *
“Why were you in China?” asked the passport control officer, a woman with the appearance and disposition of a prison matron.
“None of your business,” I said.
Her eyes widened in disbelief.
Lawyers and others may want to read Split Circuits, N.D. Georgia Notes Split Re: Whether Use of Pre-Arrest Silence in Government’s Case-in-Chief Violates Fifth Amendment
(Found via Pogo Was Right, Pointer: More Law: Refusing To Answer Questions At U.S. Passport Control)
It's stuff like this that gets me mad at the Obama administration:
According to the NYT in Gates Cites Peril in Leak of Afghan War Logs by WikiLeaks, US immigration officials (along with the Army’s criminal investigation division) stopped US citizen Jacob Appelbaum to question him about his involvement (which he denies) in the Wikileaks somewhat Pentagon-papers-like release of US classified documents detailing how the war in Afghanistan is going less well than advertised.
So far, well that's routine. If the cops want to interview a suspect or even a possible witness to a crime and find him at the border, as I understand it (I'm not an expert here, I'm repeating what I've been told and invite corrections) they can detain him for questioning. And why not? If law enforcement have adequate grounds to arrest or detain someone inside the US, why should they have to play catch and release with criminal suspects (or even witnesses) at the border? Similarly, if the Army is involved in the investigation of a leak of their documents, I can't see a principled reason why they can't participate in an arrest or interrogation. But that's not what's at issue here:
Mr. Appelbaum said the agents at Newark Airport refused him access to a lawyer and threatened to detain him for similar questioning whenever he re-entered the country after traveling abroad, which he said he did twice a month for a day job as an online software developer.
“They questioned my ability to re-enter the U.S. even though I'm a U.S. citizen,” he said in a telephone interview from Las Vegas. “It's very troubling to think that every time I cross the border, I'd get this treatment.”
Two problems here: First, not giving a US citizen access to a lawyer when he's being questioned about a crime he's apparently suspected of knowing about or participating in. Second, threatening to misuse the US's border control powers to harass a citizen's lawful movements across the border not because he's suspected of carrying any contraband, but because he exercises his Fifth Amendment right.
Immigration law is quicksand for civil rights, so it's conceivable to me (recall that I'm not an immigration lawyer) that the no-lawyer rule is supported by some law or precedent, although I still think it's not in keeping with our traditions or aspirations for the rule of law. (Mr. Appelbaum had the fortitude to refuse to talk without a lawyer for the three hours he was detained.) But the idea that it might be proper to threaten to harass someone routinely at the border, much less carry out such a threat, strikes me as not only clearly illegal but very ugly. I think this threat from US immigration or customs officials would be illegal in any context when directed at a US citizen, but the case is even more clear when in response to a valid assertion of a Fifth Amendment right not to speak when interrogated.
I doubt Mr. Appelbaum wants to sue about this, but it seems to me that the particularity of the threat against him would give him standing to seek declaratory and perhaps injunction relief despite the bar on general suits of this nature set up in Los Angeles v. Lyons, 461 U.S. 95 (1983).
Views from those knowledgeable about such things welcomed.
I am very much in favor of the free movement of people, and especially of ideas. So I'm very happy to read that State Department Ends Unconstitutional Exclusion Of Blacklisted Scholars From U.S.. Indeed, having once shared a meal with Tariq Ramadan I can testify that he can seem very pleasant and reasonable — which, many think, is why the former administration was so afraid of him.
In general, I'm also mostly in favor of the free movement of goods and services, although there are some exceptions. And, try as I might, I can't bring myself to cheer about the US lifting its ban on this repulsive substance.
Homeland Security Watch turns the mike over to the former Assistant Chief of the Montgomery County, Maryland, Department of Police in 'Do I have the right to refuse this search?' and she suggests that there are some pretty large gaps in TSA training and procedures at airports.
I look forward to Stewart Baker's reply.
It looks as if the Bush administration policy on making it much harder to get a US visa (which Obama has yet to alter) has come home to sink Chicago's Olympic bid:
In the official question-and-answer session following the Chicago presentation, Syed Shahid Ali, an I.O.C. member from Pakistan, asked the toughest question. He wondered how smooth it would be for foreigners to enter the United States for the Games because doing so can sometimes, he said, be “a rather harrowing experience.”
This is the same stupid anti-visitor policy that is destroying American higher education by driving graduate students to UK and other universities. Here at UM, for example, we have had great trouble getting visas for some great students who want to take our LL.M for foreign students — including one who had a US government scholarship!
Maybe some good can come from this stunning defeat for Obama's personal diplomacy: bring back the pre-9/11 visa rules that made this country a magnet for tourists, investors, and the world's best and the brightest.
It's rare that I get to praise an opinion by Judge Sentelle, but today's the day.
Yesterday the DC Circuit released Caneisha Mills v. DC, [link fixed] an appeal of the trial court's failure to enjoin the District of Columbia's police department's so-called neighborhood safety zone (NSZ) plan. Tthe NSZ put a police cordon around a high crime neighborhood in DC. Police would stop every car going into the neighborhood, but not pedestrians or cars exiting, and interrogate the drivers as to why they were going there. If the answers were not satisfactory, the police would not let the driver enter. According to the court, 48 vehicles were turned away during the operation of the program.
The panel ruled unanimously that these suspicionless stops violated the Fourth Amendment. It distinguished all the other roadblock cases, including United States v. Martinez-Fuerte, in which the Supreme Court permitted suspicionless routine stops of vehicles at checkpoints on major roads leading away from the Mexican border — even quite far from the border. Instead, Sentelle relied on City of Indianapolis v. Edmond, 531 U.S. 32, 48 (2000) (“Because the primary purpose of the Indianapolis checkpoint program is ultimately indistinguishable from the general interest in crime control, the checkpoints violate the Fourth Amendment.”).
Notably absent from the Court's opinion was any suggestion that motorists have a duty to identify themselves to police in the absence of a Terry stop (one based on some suspicion of wrongdoing),
Overall, it's a right decision, and good one for civil liberties.