On dismantling the US Customs and Border Protection Agency
The Customs and Border Protection agency in the United States has metastasized. In 2019, the agency represents a danger and a threat to the freedom of both non-citizens seeking asylum at the border and also to everyday US citizens moving about broad swaths of the country, relatively far from any border, for any reason.
The United States government and its affiliates are now running immigrant concentration camps along the southern boundary of the US. The ongoing incarceration and inhumane treatment of immigrants seeking asylum have most recently placed the role of Customs and Border Protection front and center. In addition to reports emerging from inside the camps, accounts tying CBP to indefensible conditions, its own agents have used the internet to express their opposition to the monitoring that Congress is now attempting to enact within the detention centers, not to mention revelations that CBP agents have engaged in secret online chatroom sprees in which they published violent fantasies about the detainees within the camps and sexually violent fantasies — along with manufactured sexually explicit photos — about the female US Representatives, in particular, who participated in the camp-examination teams.
However, CBP’s disastrous approach to its mandate extends well beyond the camps and the refugees coming into the US.
Ostensibly, guarding the border is Customs and Border Protection’s mission — as opposed to tracking down and arresting undocumented individuals who’ve made it further into the country, which usually falls within ICE’s wheelhouse. For approximately 200 million individuals that live in the US, however, the zone that Customs and Border Protection considers its jurisdiction is surprisingly extensive. And you don’t need to be a refugee or undocumented person to worry about it.
The Justice Department defines “border” to include 100 air miles from any water or land boundary of the United States. Still, not even that expansive interpretation prevented agents from stopping Vermont’s US Senator Patrick Leahy as he drove home one night in 2008. Leahy was some 125 miles from the nearest international line. Nonetheless, Border Patrol agents — they handle the highways and interior zones while customs officers run ports of entry — demanded that he prove his citizenship. When Leahy demanded to know by what authority they could detain and interrogate him, as he said in news accounts, one agent pointed to his government-issued sidearm in the form of an answer.
Indeed, as Melissa del Bosque reports, CBP takes a wide-ranging approach to its interventions.
CBP… has the authority to set up checkpoints almost anywhere within the hundred-mile zone, and to search and detain people without a warrant as long as they feel they have “probable cause” to suspect that someone is in the country illegally or smuggling contraband. The Fourth Amendment of the Constitution protects citizens from “unreasonable searches and seizures,” but CBP operates with wide discretion, often using alerts from dogs as a reason to pull people aside for secondary inspection. Within twenty-five miles of any border, Border Patrol agents have even more expansive powers; they can enter private land without a warrant or the owner’s permission.
Furthermore, according to del Bosque, the concept of CBP’s jurisdiction is being pushed even farther than Leahy’s experience at 125 miles from the nearest boundary.
Over the past ten years, advocacy groups have seen complaints about harassment and abuse at these checkpoints rise, and they have raised concerns that CBP is slowly creeping farther into the interior of the country. “In court cases, we’ve seen roving patrols two hundred miles beyond the border,” said Chris Rickerd, a policy counsel at the American Civil Liberties Union. “People are surprised to see CBP in Los Angeles or in Houston, but it’s a consequence of the agency not having any limits.”
The apologist may well lodge an argument that a margin of some hundreds of miles into the interior of the US is necessary for catching individuals that elude initial apprehension. Such an argument would not account for the evident nature of what CBP agents are doing with — and to — the people they detain.
Laura Sandoval handed the CBP her American passport when she was pulled from the line at a checkpoint near El Paso, in 2012, del Bosque tells us. A drug-sniffing dog barked at her, and that set into motion a four-hour nightmare, during which Sandoval was stripped and cavity-searched, given laxatives and observed while she moved her bowels, X-rayed, and then subjected to a full body scan.
Seth Harp — born and raised in Texas, now a contributing editor and writer for Rolling Stone, The New York Times, The New Yorker, and others — was pulled from the immigration line while returning to Austin from Mexico City in May 2019. During his hours in custody, CBP officers conducted warrantless searches of his electronics and journals. They informed Harp that, if he did not comply with questioning, he would be barred from entering the country — which, incidentally, the CBP is not allowed to do in cases of an incoming American citizen. Harp was not allowed to summon the help of a lawyer or leave the rooms in which he was kept. When he tried to call for help, the CBP took away his phone.
The loophole through which the CBP detains and, without warrants, searches individuals such as Sandoval and Harp is actually baked into the rules that govern the agency — and they are rules that the CBP wrote for itself. Here’s more on that scenario, as del Bosque reports:
In general, law enforcement agents have to get a warrant to search your electronic devices. That’s the gist of the 2014 Supreme Court case Riley v. California. But the Riley ruling only applies when the police arrest you. The Supreme Court has not yet decided whether the same protections apply to American citizens reentering the United States from abroad, and federal appeals courts have issued contradictory opinions. In the absence of a controlling legal authority, CBP goes by its own rules, namely CBP Directive No. 3340-049A, pursuant to which CBP can search any person’s device, at any time, for any reason, or for no reason at all.
The impact of the CBP is increasing. The agency’s warrantless searches have increased some 300% since President Donald J. Trump took office, according to Sophia Cope, an attorney with the Electronic Frontier Foundation. Before the cancer of these extraordinary powers, loopholes, and evidenced disdain for Constitutional and human rights can expand even further, there are three things we must do to dismantle the apparatus that allows CBP to abuse the people, and the principles, and the values of the United States of America.
The Department of Homeland Security, under which CBP operates, must cooperate with Congress to create a non-partisan task force that shall enter each of the existing immigrant detention camps — and the task force shall be provided with a mandate that extends to any new camps constructed. The task force will operate with the express goal of discovering whether any process enacted or facility in operation fails to comply with the US Refugee Act of 1980 and, furthermore, with the United Nations High Commissioner for Refugees’ guidelines relating to the detention of asylum seekers, as issued in 2012. While it appears to be evident that non-compliance is an a priori factor in the operation of some, if not all, the camps, the task force is a necessary step to materially bring forth an incontrovertible body of evidence, a critical mass enabling the next action in this list. We see evidence that such cooperation is possible via, for example, the DHS Office of Inspector General, which issued a report, July 2, 2019, detailing the squalid camp conditions.
The next step is that the task force will report to Congress and the public on any and all conditions found to be at variance with US laws and international guidelines. Should Congress find the actions and conditions evidenced at the camps to violate the laws and protocols governing the United States’ treatment of immigrants seeking asylum, then the camps shall then be dismantled and the asylum seekers released into treatment and care that maintains strict accordance with the Refugee Act and UNHCR guidelines.
Congress must next pass a law to reverse the Homeland Security Act, thereby dismantling the Department of Homeland Security as a Cabinet department under the US President and that office’s appointed secretaries. It must send back components of the DHS to their pre-2002 homes. The Customs and Border Protection agency would return to the US Treasury, where, as Matt Ford notes, in The New Republic, it operated for decades before achieving its current and metastasized state. ICE would return to the Department of Justice. Furthermore, the rules by which the CBP operates — in particular, those leading to its self-created warrantless-search permissions — will be rewritten to comply with the Constitution, the Fourth Amendment, and all other guiding laws and principles that emerge from a complete revisiting of the agency’s mandate in light of recent events. At a minimum, the new law must stipulate when and how CBP agents and officers can conduct searches and detentions, and those rules cannot be penned by the very individuals who will then go on to enact them.
Again, the steps are as follows: unfettered entrance to the camps; investigation and a full reporting to the American people of what has transpired in each location; the closing of the camps in all cases deemed right and necessary; and the dismantling of the apparatus, the laws, that have enabled this present-day manifestation of unconstitutional and inhumane behavior to occur.
The law enforcement agencies for which the United States people pay with their taxes, and over which they may rightfully demand legitimate oversight, are tasked with protecting the borders of the country in only constitutionally consistent ways, and in a fashion that conforms with our best guiding principles for the protection of human rights alongside the protection of our citizens. It is time we, the people, put our elected officials to the task of delivering those outcomes in ways that uphold the longstanding promise of our once proud nation.