Drawing a Line
This Fourth of July, celebrate the Fourth Amendment — and efforts to rein in the Border Patrol's abuses of it.
Our Founding Fathers would have been astonished by the zeal with which we defend the NRA-sacred Second Amendment, compared to our lackadaisical attitude toward the Fourth Amendment. Those early patriots keenly felt the importance of "The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures." After all, of the various freedoms guaranteed by the Bill of Rights, this was among those most frequently violated by the British whom the Founding Fathers had risked all to oust.
Today, however, whether in NSA snooping or drunk-driving checkpoints, we routinely accede to intrusions that would have left James Madison agape. Here in the desert Southwest, the Fourth Amendment has also come under siege from our own government in the form of the Border Patrol.
Now, we'd be among the first to salute the vast majority of hard-working Border Patrol agents, who perform a job that's at once tedious and dangerous — a job few among us would be willing to take on ourselves. As Rep. Beto O'Rourke, a Democrat who represents El Paso, put it at a recent news conference, most agents "do what I think are among the toughest jobs in federal employment in very difficult circumstances, very difficult terrain, trying to remain vigilant against innumerable threats."
But O'Rourke made those comments while explaining new bipartisan legislation he's co-sponsoring with our own GOP Rep. Steve Pearce to increase accountability and oversight of the US Customs and Border Protection (CBP). We applaud Rep. Pearce, whom we've often criticized in this space, for reaching across the aisle to address this important issue. Their bill would create an independent Department of Homeland Security Border Patrol Oversight Commission, which would have subpoena authority to study and make recommendations on CBP's use of force, search and seizure, personnel training and community engagement policies. Subcommittees would represent the Canadian and Mexican border regions, and members would be named by the president, speaker of the House and Senate majority leader.
Most important, the measure would institute a formal process for handling complaints against border agents. That's badly needed, in light of a report released in May that described "chronic inaction" on complaints ranging from excessive use of force to invasive searches. Using public-records requests (because there is no centralized, public complaint system), the report by the American Immigration Council identified 809 complaints against the Border Patrol between January 2009 and January 2012. Some 40% were still pending. Of 485 complaints in which a formal decision had been made, 97% resulted in no action.
The El Paso sector that includes southern New Mexico had the fewest number of complaints, 31. But the neighboring Tucson sector recorded the most, 279. Complaints included an improper strip search, invasive body cavity search, and allegations that an agent kicked a pregnant woman, causing her to miscarry. Ranchers have complained about agents leaving gates open, letting cattle loose, and hitting livestock with their vehicles without consequences.
Daniel Martinez, a co-author of the report, said he believes many complaints never get reported because of fear, lack of information, or the deportation of the affected individual. He added, "It's just really scratching the surface of the true population universe."
The CBP, in a statement, said that it "is committed to ensuring that the agency is able to execute its challenging missions while preserving the human rights and dignity of those with whom we come in contact."
It's not just along the immediate border where those rights have come into conflict with intrusive investigations by CBP agents — or where the agency has shown a lack of transparency in dealing with complaints. The Border Patrol operates 35 permanent checkpoints nationwide, with the potential to staff almost 170 additional "temporary" checkpoints up to 100 miles from the border. In its 1976 ruling, US vs. Martinez-Fuerte, that upheld the legality of such checkpoints, the US Supreme Court said that questions at such stops must be brief, minimally intrusive and focused on immigration. Any further detention "must be based on consent or probable cause."
But ACLU attorney James Lyall, who's suing to obtain documents about CBP "roving patrols," says some people are not merely delayed but harassed. "What we are seeing are innocent people being pulled over 50, 60, 70, sometimes over 100 miles north of the border, essentially on a whim," he told the Arizona Daily Star. "They can't do that. That is against the law."
At checkpoints, Lyall added, agents "frequently ignore" legal limitations: "They cannot search your car without probable cause. They cannot detain you to interrogate you about matters unrelated to briefly verifying your residence status." And the court has held that checkpoints cannot be used to investigate "general criminal wrongdoing."
In another lawsuit filed this spring, however, Arizona resident Mario Alvarado — a US citizen — claimed he was stopped and referred to secondary inspection at an I-19 checkpoint multiple times. Twice he was detained for eight hours.
Yet when residents of Arivaca, Ariz., tried to get that checkpoint removed from their community, they claim they were blocked and harassed by border agents. The long-time residents complain that the checkpoint interferes with getting to school, shopping and doctor's appointments. When small groups of residents showed up at the checkpoint with a sign and a video camera to monitor for abuses, they were obstructed, harassed and threatened with arrest, according to an ACLU letter.
Part of the problem may lie with the rapid expansion of the Border Patrol, coupled with inadequate training of new agents. Texas Rep. O'Rourke said, "We are now spending $18 billion a year to secure the border, which is more than twice what we were spending 10 years ago, and in the surge of spending and doubling the size of the Border Patrol... there hasn't been the requisite training and oversight and transparency necessary to make sure that we get the absolute most professional force on the border that is treating everyone with dignity and respect."
The CBP website says new Border Patrol agents go through 58 days of "Basic Academy" in New Mexico, which includes "immigration and nationality laws, physical training and marksmanship." A 2007 Government Accountability Office (GAO) review concluded that CBP training "exhibits attributes of an effective training program" — but that was before the number of agents doubled. At the time, the GAO expressed concern that "the Border Patrol's plan to hire an unprecedented number of new agents over the next two years could strain the… ability to provide adequate supervision and training."
That's exactly what happened, says Josiah Heyman, chairman of sociology and anthropology at the University of Texas at El Paso, who helped draft the O'Rourke-Pearce bill. He told the El Paso Times, "I think a lot of money was thrown into homeland security, especially Customs and Border Protection, without accountability or good planning."
The bill to help address those problems, unfortunately, is likely to fall victim to the general lack of progress on any immigration-related legislation in the House. Our Founding Fathers, who came up with our checks-and-balances system of government along with the Fourth Amendment, would be baffled and appalled that their creation is so incapable of protecting the basic liberties for which they fought.
They would likewise feel betrayed by their future fellow citizens' mostly meek acquiescence in the erosion of the right to be secure against unreasonable searches and seizures. We shouldn't need a British "redcoat" kicking down the door to understand that the Fourth Amendment is essential to the Bill of Rights, and to the independence we'll be celebrating on July 4.
David A. Fryxell is editor of Desert Exposure.
PO Box 191
Silver City, NM 88062