Protect Your Rights At The Border

My post about refusing to answer questions from Customs and Border Protection officers when re-entering the U.S. has resulted in a lot of debate. My thanks to everyone who joined the conversation, including the authors of the more than one hundred posts that called me a douchebag. Let me address the major points raised, although there are multiple issues  such as the fine distinction between CBP’s immigration powers and its customs powers  that I need to truncate or elide to keep this response from becoming a law review article.

(BTW, I’m blown away by the hubbub. In the last three days, this blog has received more than 75,000 hits. The original post currently has 175 comments, while the Boing Boing report has 172 comments, the Consumerist article 312 comments, and the Reason piece 121.) (Update: The Hacker News section of ycombinator currently has 104 comments.)

1. A U.S. Citizen Cannot Be Denied Re-Entry To Her Own Country.

A federal judge in Puerto Rico  a territory sensitive to the rights and privileges of its residents’ U.S. citizenship  said it best: The only absolute and unqualified right of citizenship is to residence within the territorial boundaries of the United States; a citizen cannot be either deported or denied reentry. U.S. v. Valentine, 288 F. Supp. 957, 980 (D.P.R. 1968).

So, while some commenters worried  or advocated  that a citizen who refused to answer CBP questions would be denied re-entry to the United States, the U.S. government does not have the power to prevent a citizen’s re-entry.

2. (The Right To) Silence Is Golden.

This is principally about the right to silence. CBP officers are law enforcement (pictured), who can detain you, arrest you and testify against you in criminal court. You place yourself in jeopardy every time you speak to them about anything.

CBP officers are not your friends. CBP officers treat returning U.S. citizens as potential criminal defendants. You should likewise treat them as if they were corrupt cops on a power trip, targeting you to goose their arrest statistics. The best way to protect yourself against their depredations is to refuse to speak to them or to answer their questions.

3. Any Misstatement To A Federal Officer Can Result In Your Arrest.

If a federal officer claims you lied to him, you can be arrested and charged with the crime of making false statements. You do not have to make the statements under oath (which would be the different charge of perjury).

This statute  which is referred to as Section 1001 and which can be read here in all its prolix glory  is the reason why Martha Stewart has a Bureau of Prisons number.

The only way to immunize yourself against a false statements charge is to refuse to speak to federal officers.

Wait, you ask, what about telling the truth? Doesn’t work. If, in the course of your conversation, you mis-remember something or speak inarticulately, you can now be arrested. Innocent mistake? Prove it in court after being jailed, charged, tried and paying for a lawyer.

Cardinal Richelieu is alleged to have said, If you give me six lines written by the hand of the most honest of men, I will find something in them which will hang him. That’s also how the false statement charge works. Any cop or prosecutor can concoct a lie from your statements.

The only way to protect yourself from a false statement charge is to refuse to speak to federal law enforcement officers.

4. Business or Pleasure? Is A Trap.

Which brings us to the reason why, contrary to the belief of many commenters, the seemingly innocuous CBP question of whether your international trip was for business or pleasure is a trap.

You say business (because you were at a conference) but the stamps in your passport indicate that you’re returning from a tourist destination like Bali. Now the officer can argue that you have made a false statement, have engaged in an attempt to claim improper business deductions under the Internal Revenue Code and have broken any other federal criminal law  there are more than 10,000  which he can mold around the circumstances.

You and your travelling companion say pleasure but you’re returning from Antwerp, a city known for its diamond trade not its nightlife. Liars and smugglers! And, with two people involved, the feds can levy conspiracy and aiding and abetting charges.

[Clarification: I'm not saying these charges would stick. I'm saying they can be concocted because of purported inconsistencies in your story. My point is that the officer acting in bad faith wouldn't have that ammunition if you invoked your right to silence.]

Answering the question also immediately opens you up to more questions, which can lead to more chances for the feds to claim that you said something suspicious, inconsistent or false.

(In addition, and this is very much a lawyer’s objection, the question requests a legal conclusion. I have no idea how many federal laws create a distinction between business and pleasure travel or what standards are used. It’s not my call.)

5. Politeness Would Make No Difference.

Many of the commenters took issue with my rude tone toward the CBP officers. This criticism is profoundly misguided.

To the authoritarian mind, there are only two responses to a demand: submission or defiance, and anything less than total submission is defiance. A Lutheran grandmother from Savannah with manners from an antebellum finishing school would be hassled if she refused to answer CBP’s questions.

Answering with a tart None of your business underscores that I will not be pushed around and  potentially important from a criminal procedure perspective  is an unambiguous statement that I am not waiving any rights. It is a line in the linoleum.

Further, why is politeness a one-way street? Many commenters relayed stories about rude, abusive, mean and intrusive CBP officers. The entire cop ethos is based on intimidation and domination. We should be able to give the officers a little of their own medicine, and, if they’re as tough as they claim, they can take it.

6. There Is A Profound Difference Between A U.S. Citizen Entering a Foreign Country and a U.S. Citizen Re-Entering Her Own Country.

Multiple commenters confuse or conflate the distinction between a U.S. citizen entering a foreign country (where she can be refused entry for any reason or no reason) and a U.S. citizen returning to the U.S. (where she cannot, as noted in Item No. 1, be denied entrance). These are completely different situations with almost no overlap in terms of governing law, procedures, rights, anything.

That being said  and this is a point several commenters made  entering the U.S. is a cruder experience than entering most other countries. Although I enter China multiple times a year, I have never been asked a question by an immigration or customs officer. When I have entered Thailand without a visa, the officer’s questions have been limited to the duration of my visit (to make sure I am within the Kingdom’s visa waiver rules). Once, a German immigration officer wanted to know my plans, and that interview was polite and three questions long. And, in my reading of travel blogs, the U.S., Canada and Great Britain are the three countries consistently mentioned for their overreaching border officers.

Even adjusting for the fact that a citizen has more interactions with the officers of his own country (and therefore more likely to have a bad encounter), U.S. border officers have a needlessly hostile view of the citizens who, on paper, they serve.

7. Just Doing My Job Is Bunk.

Many of the commenters are obviously CBP officers or shills  the repeated references to how CBP officers are underpaid is a tell  and they chant the mantra that the officers on the desks are front-line personnel merely carrying out policy.

I will resist the temptation to pull a Godwin and will merely respond, I don’t care. When a person accepts and keeps a job which involves pressuring and tricking citizens into waiving their rights of privacy and silence (while refusing to admit that the citizens possess those rights), the person has to deal with attitude on the incredibly rare occasion when someone exercises their rights.

You made your choice, officers. Don’t whine when someone points out the legally and morally dubious nature of the job you voluntarily accepted, remain at and could quit at any time.

8. The Other People In Line.

This is a bright red herring. To the extent any immigration or customs line is being slowed down by a citizen refusing to answer questions, it’s because the CBP officer refuses to accept the fact that the citizen is lawfully exercising her rights (as several commenters noted).

As a practical matter, there’s almost no hold up. When a citizen refuses to answer questions at the first CBP kiosk, she is ordered to secondary within a minute or two. The wait is less than it might be if a returning citizen submitted to questioning or had a complicated, multi-national family situation.

In addition, living in a free country means that sometimes you are inconvenienced by others’ assertions of their rights. On occasion, you have to see advertisements for products you think are disgusting, have your morning commute hampered by a strike, or have to drive half a mile out of your way because of the GLBT parade.

Perhaps I or a like-minded person made your stay in the airport four minutes longer. You’ll live.

9. Small, Successful Battles Can Prevent Large, Losing Battles.

When it comes to rights, you don’t know in advance what battle will be important. But you do know, based on history and human nature, that a right undefended will shrivel and die. If you don’t fight for the small right, you won’t be in a position to assert the large right.

Moreover, the existence of the right of privacy is usually based on whether people have a current expectation of privacy in a certain situation. To the extent that people decline to assert their right of privacy, it slips away. Lack of vigilance by citizens begets more government power.

10. Travellers Who Have Presented Proof of U.S. Citizenship Should Not Be Detained For Refusing To Answer Questions.

That’s what this is all about. Once a traveler has provided bona fide proof of U.S. citizenship, he or she is entitled to re-enter the country. CBP should not be asking questions as a matter of course, and, if citizens assert the right to silence, CBP should not be detaining them.

Update: Two commenters mentioned that the original photo was of the Border Patrol, not CBP, so I’ve substituted a photo of CBP officers training to arrest someone.

http://nomadlaw.com/2010/09/10-brief-responses-700-comments-about-refusing-answer-questions-at-passport-control/