The Crossroads of Destiny: Illegal Search And Siezure Cross Border into Existential Hypocrisy

It's right there in the Fourth Amendment to the Constitution:

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Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

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Do not pass go, do not collect two hundred dollars, do not parse, do not fold, mutilate, spindle, tear, gut, burn or shred.

In keeping with policies and procedures consistent with gutting the foundational principles of our Constitution and democracy, the Bush Administration's Department of Homeland Security has proceeded to ignore the care and handling advice and has engaged in the very actions verboten by those instructions.

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On July 16, DHS issued a document that gave border agents the authority to conduct Constitutionally illegal searches and to sieze items without due cause or warrant:1

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Federal agents may take a traveler's laptop computer or other electronic device to an off-site location for an unspecified period of time without any suspicion of wrongdoing, as part of border search policies the Department of Homeland Security recently disclosed.

Also, officials may share copies of the laptop's contents with other agencies and private entities for language translation, data decryption or other reasons, according to the policies, dated July 16 and issued by two DHS agencies, U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement.

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According to an article in the CBC,2

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The policy gives border agents at any point of entry into the United States the authority to also take documents, books, pamphlets and hard drives. The items can be seized from anyone crossing the border and may then be copied and shared with other government agencies, according to Department of Homeland Security documents dated July 16.

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Emphasis mine.

Yes, anyone crossing the border -- even US Citizens.

Quoting again from the WaPo article,

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DHS officials said the newly disclosed policies -- which apply to anyone entering the country, including U.S. citizens -- are reasonable and necessary to prevent terrorism.

[...snip...]

The policies cover "any device capable of storing information in digital or analog form," including hard drives, flash drives, cellphones, iPods, pagers, beepers, and video and audio tapes. They also cover "all papers and other written documentation," including books, pamphlets and "written materials commonly referred to as 'pocket trash' or 'pocket litter.' "

Reasonable measures must be taken to protect business information and attorney-client privileged material, the policies say, but there is no specific mention of the handling of personal data such as medical and financial records.

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Ultimately, if "no probable cause exists to keep the information" is found to exist, any copies have to be destroyed, but there are no limits or requirements governing written notes or reports about the materials -- and as we've seen over the past eight years, that's a major loophole for an Administration and Justice Department that has exploited and stretched any imaginable loophole far beyond theoretical limits, often crossing far into the realm of the unbelievable.

Jesselyn Radack wrote about this on Friday on DailyKOS3 but it didn't get much notice or play. It should have.

It is beyond the pale, unconscionable and wholly against several of the core principles upon which our nation was founded -- first, the right to be secure in one's possessions against unreasonable, unwarranted, unreasonable search and siezure; second, that one is innocent until proven guilty.

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"The policies . . . are truly alarming," said Sen. Russell Feingold (D-Wis.), who is probing the government's border search practices. He said he intends to introduce legislation soon that would require reasonable suspicion for border searches, as well as prohibit profiling on race, religion or national origin.

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The above was also from the WaPo piece.

As much as I admire Senator Feingold and his efforts to curb these ever-expanding criminal offenses and affronts to our nation, I have to disagree with him here.

These policies aren't "truly alarming" -- they are illegal and unConstitutional. They are BEYOND simply alarming. They signal misguided, if well-intentioned,4 and very unAmerican attempts to further suborn our democratic republic, and to allow them stand even for a minute now that they have been exposed is to insult every man, woman and child who has ever died in the service of this nation and in the pursuit of freedom and justice.


I created the image above as a postcard for a CafePress store. If you click the image, you can go the store and buy an eight-pack. If you simply can't afford it but want to use the picture to create your own postcard, simply click here -- hopefully it's big enough. If you want to re-use the image online, include the link to the store wherever you use it as a condition of use, but other than that you are welcome to spread it widely.

We are quickly approaching the end of the most corrupt, twisted and criminal Administration in the history of our nation. They expect us to let them coast to the end and thus continue to finish their agenda relatively unopposed, sheltered by the practiced obstructionism of the Republicans in Congress even as more evidence of politicization and rampant cronyism are exposed.

We are not merely in the midst of a Constitutional Crisis now.

We, as a People and as a Nation, have arrived at the Crossroads of Destiny, and how we resolve to answer the problems currently confronting us will impact the future of our nation and of countless generations.

Hat-tip to Peter1a for the email tip to the CBC story. Crossposted from ePluribus Media to DailyKos, Docudharma and BelowBoston.
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Footnotes
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  1. Travelers' Laptops May Be Detained At Border, No Suspicion Required Under DHS Policies by Ellen Nakashima, Washington Post Staff Writer,
    Friday, 1 August 2008; Page A01
  2. U.S. border agents given power to seize travellers' laptops, cellphones; Last updated: Friday, August 1, 2008, 3:33 PM ET
  3. DHS Can Take My iPod & Cell Phone? For No Reason? Forever? by Jesselyn Radack, Fri Aug 01, 2008 at 10:25:55 AM EDT
  4. "...if well-intetioned..." -- Actually, I doubt that it was actually well-intentioned, in spite of the lip service of those who proposed and implemented the process. They know what the people want to hear in order to make them more likely to accept the unacceptable. The ones who proposed such things aren't truly interested in protecting us, however -- they are simply interested in raw, unopposed power. IMO. YMMV.
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the Fourth Amendment really doesn't exist at the borders -- in fact, the WaPo article cites, at the bottom, an instance where the 9th District Court upheld the insanely vague and broad powers over customs. It is, however, explicitly under the purview of Congress to pass legislative limits, which Senator Russ Feingold will hopefully successfully pull off.