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

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


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.


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.

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


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.


According to an article in the CBC,2


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.


Emphasis mine.

Yes, anyone crossing the border — even US Citizens.

Quoting again from the WaPo article,


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.


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.


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.


“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.


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.




  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.


Skip to comment form

    • GreyHawk on August 3, 2008 at 19:54

    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.

  1. of whom the majority seem to be tricky lawyers seem to me to be an oxymoron. All information personal is the states to own not yours. Even the DMV wants my marriage license in order to prove I’m not a threat?. I don’t get to own my name’s origin, my personal story. Since the line between corporations and government is gone this applies to every aspect of your life for even the most peaceful of us.

    For the powers that be it’s a winner they get to use all information gathered for control and profit and pass it off as security and protection. As in nice life you have there be a shame if we wreck it. I was told at dkos that these unlawful uses of power are just side issues and the important thing is to win. The other argument I hear is this is okay as if your not a bad guy, a danger to the state, you should have nothing to fear or hide. Good Germans need papers, their data belongs to the state (corporations).    

    • k9disc on August 3, 2008 at 20:40

    It’s as simple as that.

    I’m so fucking upset by this. I can’t even begin to express myself.

    We are no longer citizens, we are Peasants.

    Citizens are Criminals.

    This has got to be some kind of fucking joke.

    Land of the criminal and home of the cowardly – that’s what we’ve become.

    I am so god damned pissed off I could just scream!!!

  2. IMHO, when they engaged in warrantless wiretapping.  Congress validated their illegal actions with the FISA vote.  Pelosi–and other “leadership” in the House & Senate–knew about the illegal violations of the Fourth (and Eighth) Amendment(s) before and during the fact.  

    So, we have an Administration that just continues to expand their violations of the Constitution, and a Congress that has become an accomplice to the lawbreaking–before and after the fact, and because of their own guilt, they, sadly, are very unlikely to do anything to curb, investigate or punish the bushies.  

    I do believe we are in a Constitutional crisis and a leadership crisis as well.  We, the People, have allowed a slow, relentless stripping away of our civil liberties and the consequences are slowly and painfully becoming apparent. When will the majority of people decide they’ve had enough?  I hope it is soon.  I hope it is before it is too late.

    • banger on August 4, 2008 at 02:30

    The excuse for the anti-Constitutional movement which both major parties agree on is that we at “War”. This War we are in, undefined, without limit and, most importantly, without definition, is the problem.

    The left in this country has failed to address this matter of War by refusing (largely) to look at not only the logic of an impossible war (there can be no “war” against “terror”–even if you could define it–since war is a creative application of terror you have a terror against terror). The fact is that the left, early on, swallowed the absurd government claims about 9/11 and, in places like DKOS, banned discussion of 9/11. The left essentially granted the right-wing authoritarians free rein to trash the Constitution.

    The blame is not with the Feingolds (he is doing the best he can) and it is not with the neo-fascists (they are just filling the void)–the blame lies with the left and its (our) appalling timidity and lack of confidence.

  3. They don’t need a reason…they just do it frequently enough to show off to others so that everyone will conform. It is all about control. They are trying to “impress” upon people that the “enemy is everywhere” and we must stay vigilant. Like 1984, where there is no enemy, create one!

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