Thursday, April 23, 2009

Trading Freedom and Security on the Border

"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."
--Fourth Amendment to the United States Constitution (1791)

Over the past few weeks, several stories have come across my computer that were all concerned in one way or another with the Fourth Amendment rights of the Constitution, which is understood to guarrantee the right to personal privacy. The first was about a young activist from the Campaign for Liberty, who was illegally held for questioning at the St. Louis Airport at the end of March on the pretext that he was carrying a large amount of cash. He recorded the harrassment he received from TSA officials on his cell phone, which was later played on Fox News' Freedom Watch. (Hat tip to Rational Jenn). At about 2:47 minutes into the recording, a TSA agent says: "If you have nothing to hide then you you can just tell me what it's for . . ."

In another, unrelated story that I found after being directed from Doc's blog to another, I read about Steven Anderson, a Baptist minister from Tempe Arizona, who was detained at an internal DHS/Border Patrol checkpoint, and when he refused to answer any questions, he was moved to a secondary area, forcibly removed from his car, tazed and beaten prior to being arrested or read his Miranda rights. The entire story is related in five parts on You Tube posts of Freedom Watch. In part 4, a video of the encounter shows the DHS/Border Patrol unable to articulate any probable cause, and in part 5, Judge Napolitano discusses the minimum legal requirement for any search and seizure: articulable probable cause. The assumption that if a person will not answer, he must have something to hide is a feature of this story. At one point, you hear the Border Patrol agent say to Pastor Anderson: "And until we prove you are not guilty . . ."

This is a very worrisome statement, given that US law, which is based on English common law states that a person must be considered innocent until proven guilty.

What was even more alarming to me was that when I took a look at the comments to both of the above stories in newspapers online, at You Tube, and the comments at Doc's about this, many Americans are content to believe that if a person defends his right to be secure in his very person, in his property and personal effects, then that person must be hiding something, because, after all, "if he has nothing to hide, he should cooperate."

This kind of statement is a logical fallacy called a false dichotomy. It puts the person being harrassed in the situation of being considered guilty of something if he does not answer the question or consent to the search. The problem is that there are other options than "innocent means nothing to hide" and "refusal means guilt." By being coerced into a response by the false dichotomy, the individual surrenders the principle that he has the right to that security in his person, property and personal effects. And there is no partial surrendering of rights: it's all or nothing. And once a person surrenders any of his rights, he has placed his power into the hands of government. Our founders understood this to be a very dangerous proposition:

"Experience hath shewn, that even under the best forms (of government) those entrusted with power have, in time, and by slow operations, perverted it into tyranny."
— Thomas Jefferson

Certainly the treatment of American citizens we have witnessed in these incidents is tyrannical. And the reality is that innocent people are harmed by such abuse of power often enough. There are bad cops. There are bored cops. And there are DHS/Border Patrol agents that do not know or understand the law.

Many people also argue that the Supreme Court has ruled that the Border Patrol is allowed to violate the Constitutional right to security in person and possessions, and that there is a certain territory within 100 miles of the international borders of the United States that are effectively "Constitution-Free Zones." (Hat tip: Consent of the Governed).This is an egregious abuse of power that can effectively end our liberty to move freely within our own borders. Here is what the ACLU has to say about the increasing power we have given over to the Federal government to meddle into our affairs:

"If the current generation of Americans does not challenge this creeping (and sometimes galloping) expansion of federal powers over the individual through the rationale of “border protection,” we are not doing our part to keep alive the rights and freedoms that we inherited, and will soon find that we have lost some or all of their right to go about their business, and travel around inside their own country, without interference from the authorities." (grammar problems in the original)

The argument that because the Supreme Court has made a ruling means that the particular behavior is constitutional is also false. The Supreme Court has made unconstitutional rulings in the past. For example, consider the infamous Dred Scott decision, Buck v. Bell., or Plessy v. Ferguson. These unconstitutional rulings can do quite a bit of damage to the lives, liberty and property of citizens before they are reversed by the pressure of determined citizens. We must be those citizens and assert our rights against intimidation by false dichotomy or any other means.

I have experienced these "Constitution Free Zones" repeatedly in my travel within New Mexico, and I have always asserted my rights by stating that I am a citizen traveling freely within the borders of the United States. Since the Border Patrol does not have the legitimate authority to enforce the law, other than immigration law, they do not have the right to receive answers to any other question. On the other hand, since I have been detained unreasonably, often far within the borders of my own country, I always ask for the agent's ID. I have the right to know who this person is who is stopping me, and on what authority. However, I have often been waived through these checkpoints because I am driving while white.

As I wrote a few months ago, being On the Border has become fraught with dangers. However, those dangers should not be exacerbated by our government, our peace officers, or federal agencies, such as the Department of Homeland Security, which was established by the unconstitutional Patriot Act.

I stand with Benjamin Franklin, who wrote:

"He who would trade freedom for security deserves neither . . ."

. . . and he ends up with neither.

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