ACLU Exposes Homeland Security Enforced ‘Constitution Free Zone’


As reported by Radley Balko in a recent Reason article, the ACLU has finally entered the fray regarding internal suspicionless Homeland Securitycheckpoints.

On October 22nd, the ACLU kicked off a public campaign to draw attention to the proliferation of these checkpoints that are usually located within the 100-mile Constitution Free Zone that rings this once-free country.


Radley’s article does a good job addressing the issue but understates the number of internal DHS checkpoints currently in existence:

With 33 checkpoints now in operation, we’re not exactly to the point of “Ihre Papiere, bitte” Berlin yet, but the ACLU does warn that the area of the country 100 miles from every border and coastline would include about 190 million people, or nearly two-thirds of the U.S. population

The 33 checkpoints referenced above were the number of permanentHomeland Security checkpoints in operation several years ago. It doesn’t include the number of temporary, tactical, or roving checkpoints along secondary roads utilized by Customs & Border Protection to augment permanent checkpoint operations.

While the exact number of such temporary checkpoints in operation at any given time is unknown, it’s fairly clear they outnumber permanent checkpoints by a wide margin. I’ve been documenting my experiences at just such a checkpoint since January of 2008.

In its public release, the ACLU highlighted the cases of two individuals who have recently run afoul of Homeland Security and its checkpoints. The first,Craig Johnson, is an Associate Professor of Music in San Diego. His crime was daring to peacefully protest the construction of a border wall in San Diego. His punishment has been to be placed on a terrorist watch list resulting in his aggressive seizure & search by Customs & Border Protectionagents every time he crosses the border.

The second individual was interviewed by the ACLU here:

In addition to this interview, I highlighted his experience at an internal checkpoint on this blog prior to the ACLU’s public campaign.

As part of its public release, the ACLU has published a fact sheet on theConstitution Free Zone. It’s reprinted below along with the text of the Reason article:

Fact Sheet on U.S. “Constitution Free Zone”

The problem

  • Normally under the Fourth Amendment of the U.S. Constitution, the American people are not generally subject to random and arbitrary stops and searches.
  • The border, however, has always been an exception. There, the longstanding view is that the normal rules do not apply. For example the authorities do not need a warrant or probable cause to conduct a “routine search.”
  • But what is “the border”? According to the government, it is a 100-mile wide strip that wraps around the “external boundary” of the United States.
  • As a result of this claimed authority, individuals who are far away from the border, American citizens traveling from one place in America to another, are being stopped and harassed in ways that our Constitution does not permit.
  • Border Patrol has been setting up checkpoints inland — on highways in states such as California, Texas and Arizona, and at ferry terminals in Washington State. Typically, the agents ask drivers and passengers about their citizenship. Unfortunately, our courts so far have permitted these kinds of checkpoints – legally speaking, they are “administrative” stops that are permitted only for the specific purpose of protecting the nation’s borders. They cannot become general drug-search or other law enforcement efforts.
  • However, these stops by Border Patrol agents are not remaining confined to that border security purpose. On the roads of California and elsewhere in the nation – places far removed from the actual border – agents are stopping, interrogating, and searching Americans on an everyday basis with absolutely no suspicion of wrongdoing.
  • The bottom line is that the extraordinary authorities that the government possesses at the border are spilling into regular American streets.

Much of U.S. population affected

  • Many Americans and Washington policymakers believe that this is a problem confined to the San Diego-Tijuana border or the dusty sands of Arizona or Texas, but these powers stretch far inland across the United States.
  • To calculate what proportion of the U.S. population is affected by these powers, the ACLU created a map and spreadsheet showing the population and population centers that lie within 100 miles of any “external boundary” of the United States.
  • The population estimates were calculated by examining the most recent US census numbers for all counties within 100 miles of these borders. Using numbers from the Population Distribution Branch of the US Census Bureau, we were able to estimate both the total number and a state-by-state population breakdown. The custom map was created with help from a map expert at World Sites Atlas.
  • What we found is that fully TWO-THIRDS of the United States’ population lives within this Constitution-free or Constitution-lite Zone. That’s 197.4 million people who live within 100 miles of the US land and coastal borders.
  • Nine of the top 10 largest metropolitan areas as determined by the 2000 census, fall within the Constitution-free Zone. (The only exception is #9, Dallas-Fort Worth.) Some states are considered to lie completely within the zone: Connecticut, Delaware, Florida, Hawaii, Maine, Massachusetts, Michigan, New Hampshire, New Jersey, New York, Rhode Island and Vermont.

Part of a broader problem

  • The spread of border-search powers inland is part of a broad expansion of border powers with the potential to affect the lives of ordinary Americans who have never left their own country.
  • It coincides with the development of numerous border technologies, including watch list and database systems such as the Automated Targeting System (ATS) traveler risk assessment program, identity and tracking systems such as electronic (RFID) passports, the Western Hemisphere Travel Initiative (WHTI), and intrusive technological schemes such as the Secure Border Initiative Network (SBINet) or “virtual border fence” and unmanned aerial vehicles (aka “drone aircraft”).
  • This illegitimate expansion of the extraordinary powers of agents at the border is also part of a general trend we have seen over the past 8 years of an untrammeled, heedless expansion of police and national security powers without regard to the effect on innocent Americans.
  • This trend is also typical of the Bush Administration’s dragnet approach to law enforcement and national security. Instead of intelligent, competent, targeted efforts to stop terrorism, illegal immigration, and other crimes, what we have been seeing in area after area is an approach that turns us all into suspects. This approach seeks to sift through the entire U.S. population in the hopes of encountering the rare individual whom the authorities have a legitimate interest in.

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.

Radley Balko’s Reason Article:

The 190-Million Person Exception to the Fourth Amendment

Radley Balko | October 22, 2008, 8:03pm

In the 1976 case U.S. v. Martinez-Fuerte, the U.S. Supreme Court ruled that contra the Fourth Amendment, the government can set up roadblock checkpoints within 100 miles of the nation’s borders in order to check for illegal immigrants and smuggling. The Court ruled that if the stops are brief, limited to that purpose, and not fishing expeditions, the minimal invasion to personal privacy is outweighed by the government’s interest in protecting the border.

The ACLU says that since September 11, 2001, the government has been steadily stretching the limits of Martinez, to the point where the Department of Homeland Security is using that case and the terrorism threat to conduct more thorough, more invasive searches at dozens of checkpoints across the country. With 33 checkpoints now in operation, we’re not exactly to the point of “Ihre Papiere, bitte” Berlin yet, but the ACLU does warn that the area of the country 100 miles from every border and coastline would include about 190 million people, or nearly two-thirds of the U.S. population (see map below).

Moreover, post-9/11, the courts have been pretty deferential to increasingly invasive searches the government says are necessary for national security purposes. For example, federal courts have given the okay to airport seizures and thorough searches of laptops and other electronic devices belonging to people returning from abroad. Such searches can be conducted with no individualized suspicion at all. Some of those subjected to them have said it took weeks for the government to return their computers.

Should the courts uphold these increasingly invasive “border searches” under some vague national security exception, I don’t think it’s too much of an exaggeration to say that the Fourth Amendment would be close to non-existent for a large portion of the country.



Motorist puts police in their place at suspicionless internal checkpoint

Martin Hill
December 3, 2012

Border officers from the U.S. Department of Homeland Security at an internal suspicionless checkpoint in New Mexico were shown last week that if they have no reasonable suspicion or probable cause, they can not deter occupants of a vehicle even if the person does not answer their questions.

A commercial truck driver was off duty in the sleeper berth when he was awakened by an officer at the checkpoint, which was nowhere near an international border. The driver, having dealt with the issue before, did not appreciate being woken up by cops once again. Federal Motor Carrier Safety Administration regulations dictate that every commercial driver must have a 10 hour off duty period to sleep between shifts, and is not to be disturbed. Any driver who violates these safety rules can be prosecuted. So why are federal law enforcement officers and police across the country in the habit and practice of waking up truckers illegally, when the federal rules were put in place to specifically maintain the safety of both commercial drivers and individual motorists? Federal agencies have completed studies on the danger of fatigue related big-rig crashes, thus enforcing extremely strict guidelines and logbook rules. [See also The Effect of Rest-Schedule Orientation on Sleep Quality of Commercial Drivers.]

The driver had two Texas troopers wake him up in 2010 when he was off duty sleeping and his co-driver pulled into a weigh station. The Texas Department of Public Safety officially admitted wrongdoing in that case, admonishing the two officers with ‘corrective action’ and ‘retraining provided’. The troopers are currently defendants in a federal lawsuit as a result of their acts.

In this case, a similar situation, a New Mexico border agent shouted through the window while standing on the truck, waking the sleeping person and demanding to know if he was a citizen. Once again, the driver recorded the entire interaction and refused to answer questions, rebuking both the officer and his supervisor for violating federal law.

Upon questioning the supervisor briefly claimed he was detaining the man, but upon being asked what crime he was being accused of, the supervisor quickly did a 180 degree turnabout and admitted that the man was free to go “now that we know that you’re a U.S. citizen.” However, note that the man never once answered any questions or said that he was a U.S. citizen. On what basis therefore, were the New Mexico officers claiming knowledge of his citizenship? Is it merely because he was white and speaks English? Does this mean that they racially profile? Because that is the exact opposite of their department’s own stated policy.

The reality is that Americans are not obligated to answer questions asked by border agents at suspcionless checkpoints regarding citizenship, “where they’re headed”, or anything else. Terry Bressi recently won over $200,000 in a federal lawsuit from Homeland Security. [Be sureto check out his youtube channel!]. Bressi points out on his blog that the border patrol themselves have answered questions in writing regarding internal checkpoints, and they admit the following:

“Q. 11. Am I required to answer the agent’s questions at the checkpoint?”
A. “No person can be required to give evidence that incriminates themselves – that is a constitutional right. Neither can any public official compel or coerce such a statement if the person being questioned refuses to give one voluntarily…”

Bressi also notes

Referring back to the first question, the Border Patrol admits an agent must believe the individual being interrogated is unlawfully in the United States. While operating away from the border or its functional equivalent, merely being suspicious is not enough of a legal basis to further a detention or interrogation. In fact, at an internal checkpoint, the Supreme Court ruled agents MUST have probable cause or consent in order to extend the detention or to search. If an agent diverts a vehicle to secondary for further scrutiny after asking the immigration question, that represents an extended detention and must be premised on probable cause:“Our prior cases have limited significantly the reach of this congressional authorization, requiring probable cause for any vehicle search in the interior and reasonable suspicion for inquiry stops by roving patrols. Our holding today, approving routine stops for brief questioning is confined to permanent checkpoints. We understand, of course, that neither longstanding congressional authorization nor widely prevailing practice justifies a constitutional violation” – U.S. v Martinez-Fuerte

“…We have held that checkpoint searches are constitutional only if justified by consent or probable cause to search….And our holding today is limited to the type of stops described in this opinion. -[A]ny further detention…must be based on consent or probable cause.” – U.S. v Martinez-Fuerte

See also ACLU Exposes Homeland Security Enforced ‘Constitution Free Zone’What To Do At A DUI Roadblock and Police Defendants Pay $210,000 To Settle Illegal Roadblock Lawsuit.

About this entry