Expanded Definition of Our Borders Raises Civil Liberties Issues

As a child I was surprised when we crossed the Canadian border from Calais, Maine to St. Stephen, New Brunswick for the first time. I was surprised because St. Stephen didn't look any different than Calais. I had half expected the grass to be red since the map showed that Canada was a different color than the United States.

On the map the border was a thin black line. In reality it hardly existed. Movement between the two countries was easy, and our teachers proudly informed us that the U.S.-Canadian border was the longest undefended border in the world.

All of that changed after 9/11. The border is no longer undefended. While it's true that it is not defended by the military, the Border Patrol has become so militarized and has expanded so much that one can hardly tell the difference. The border is also clearly defined. In fact, it has been redefined. The United States government now says that the border extends 100 miles inland.

While this is not new news, on October 28, 2008 the ACLU brought the subject once again to the public's attention with a press conference and the release of a map which shows that 2/3 of the population of the United States, including most New Yorkers, lives within 100 miles of the border. The ACLU calls this swath surrounding the United States the Constitution-free zone.

What I didn't know until recently is the courts have ruled consistently that the Fourth Amendment to the Constitution, which protects us against unreasonable searches and seizures, does not apply at the United States border. That wouldn't be a problem for me if the border had not been redefined so that it extends 100 miles inland and encompasses 2/3 of the population.

Many of us have already encountered U.S. border patrol checkpoints on the Northway, particularly at North Hudson, 74 miles from the Canadian border. Former assemblyman, Christopher Ortloff, now sitting in jail on child pornography and other charges, was one of the first to warn of the dangers of the North Hudson checkpoint. It's not surprising, however, that he warned of the danger of the checkpoint to people's safety, rather than its danger to civil liberties. Four people were killed and more than 50 were injured in two spectacular accidents at the checkpoint in 2004. There was outrage over the deaths and injuries, but hardly anyone at the time recommended that the checkpoint should be dismantled because it endangered our civil liberties.

The ACLU is calling for Congress to push the border back to that thin black line I first crossed in the mid 1960s. I am not always a fan of the ACLU, especially when they deny rights to the unborn who are legally trying to become citizens and want to grant them instead to immigrants who are attempting to become citizens in an illegal fashion. But on the issue of where the United States border should be, the ACLU is right.

The Border Patrol has also abused its authority at inland checkpoints. The ACLU claims that the Border Patrol is "stopping, interrogating, and searching Americans on an everyday basis with absolutely no suspicion of wrongdoing."

Besides expanding the area that the Border Patrol can patrol, the federal government has expanded the Border Patrol's powers. Earlier this year, the Border Patrol was given the authority to photocopy any letters, diaries, books and electronic files you have with you when you cross the border. Any information they take down can be retained for fifteen years. Border Patrol officers can do this without probable cause. So far this has been done only at the real border, not at the expanded, 100 mile border, but there is nothing to stop the Border Patrol from doing this not only in Rooseveltown as you re-enter from Cornwall, Ontario but also theoretically it can be done in North Hudson or even Utica and Syracuse which are less than 100 miles from the old border.

Few people would argue against the idea that we must secure our borders. If the government wants to build fences along the entire border to keep out illegal immigrants and terrorists, then go to it, but don't come inland and harass American citizens who have done nothing wrong.

"So what," says Eddie the Electrician as he chugalugs a beer and watches American Idol, "I have nothing to hide." The problem with Eddie's argument is that it assumes that people who want to protect their privacy must be doing something wrong and that the government is always benevolent. People who argue that they are willing to be searched because they have nothing to hide should then be willing to have an IRS audit once a year and cameras in their bathroom.

The Fourth Amendment's purpose is to protect us against the arbitrary searches that Americans experienced under British rule. People who say they have nothing to hide are cowards, unwilling to fight for what we won in the American Revolution. If apathy concerning our civil liberties continues, the border which now extends 100 miles inland will eventually encompass the entire country.

Note: This opinion piece first appeared in The Sunday Gazette (Schenectady, New York) on Nov. 23, 2008.