Do You Live In The Constitution-Free Zone Of The US?
from the 2/3rds-of-americans-do dept
Earlier this week, we wrote about the latest defense by Homeland Security of their laptop search policies that (they claim) give them broad coverage to search laptops within 100 miles of the border. The latest bit of news was that an internal review found that there was minimal benefits to one's civil liberties in not searching their laptops, so it was okay (think about that sentence for a bit).The 100 mile "buffer zone" part of that story gets most of the attention, but it isn't a new thing. They've been claiming that for a while. It's just that this is yet another attempt by them to give themselves additional support for those kinds of searches. In our comments, someone pointed us to a useful (and horrifying) map that the ACLU put together highlighting just how much of our country is within 100 miles of border/coastline, creating the Constitution-Free Zone Map -- which happens to cover about 2/3 of all American citizens.
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Filed Under: 4th amendment, constitution, privacy, searches
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Unforunately, that means so am I.
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Everyone else, congress/senate/ordinary citizen/visitors are fair game.
Check out the ACLU's Stop and Frisk App and the story that goes alone with it.
http://www.popsci.com/gadgets/article/2013-02/can-app-stop-new-yorks-stop-and-frisk
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"The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place."
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...
Does making laws that violate the constitution and the amendments count as treason?
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noun \ˈtrē-zən\
Definition of TREASON
1
: the betrayal of a trust : treachery
2
: the offense of attempting by overt acts to overthrow the government of the state to which the offender owes allegiance or to kill or personally injure the sovereign or the sovereign's family
Sounds like making unconstitutional laws that injure the rights of the public to which they have sworn their allegiance would constitute such a betrayal of trust, so yeah... That shoe fits.
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"Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort."
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1) Moved production to foreign countries.
2) Account for most of their income via foreign branches, to avoid taxation.
Does this count as treason?
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The whole point was, they DIDN'T want people charged with treason for just making laws other people didn't like, or making an unpopular speech on the House floor.
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Correct me if I'm wrong, but I believe that treason is the ONLY crime that's defined in the Constitution.
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Both of these interpretations can be supported, and it's far from clear from the text what the founders really meant. This is the problem, and is why this argument will never, ever end unless we get a new amendment to clear it up.
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In your opinion. This is one of the supportable arguments, as I said. The other argument is equally supportable (what does "well-organized" mean? It certainly seems to indicate something different than just "anyone who can hold a gun")
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"A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."
The first part only explains it's purpose. If you remove that part altogether it doesn't add or take away from the right that it is intended to guarantee. So the whole argument about the meaning of the word militia is a side irrelevant one anyway.
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"... the right of the people to keep and bear arms shall not be infringed."
There is only one interpretation of that phrase, and it is that keeping (owning) or bearing (carrying) arms (weapons) shall not be infringed (limited or revoked).
Note it does not say anything about any TYPES of arms, amounts, or anything else. You CAN read, right?
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If there is only one, then I think the best interpretation is not yours but is something else closer to what the Supreme Court has decided in general.
Let's consider a parallel statement:
"The right of the people to eat food shall not be infringed."
I think most people would consider the above, absent further context, to mean A below rather than B.
A: "The right of the people to eat *some* food *in some way and in some quantity* shall not be infringed."
B: "The right of the people to eat *any* food *however they want and in whatever quantity they want* shall not be infringed."
I think you picked the less likely meaning, and I am fairly sure you are incorrect in insisting that only one meaning is possible and that it would be your meaning.
Here is another variation.
If I say that I can carry weights. Most people would not think I am saying that I can carry any weight imaginable but instead that there are some weights out there that I can carry.
Absent a modifier, the most natural meaning of a phrase is frequently not an extreme case but a gray area ("some") case. That is how we use English daily. If you modify, you are being extra specific. If you don't, you are leaving things more up in the air or are using a short-cut to mean something whose meaning is discerned from further context.
You will notice that contracts and regulations tend to be very wordy and precise, laws less so, and a Constitution the least precise of all or at least to allow the most room for maneuverability. That is not a requirement but a practicality. So while a Constitutional right might be to "bear arms" a law might mention that felons, civilians, the mentally disabled, young people, etc, have limitations.
This is what we find in society. Your absolutist interpretation is for frustrated commenting online.
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the constitution is based on a "you can do this and they can't stop you" reasoning (They being the government) If I want to "lift" 2 tons than I can because it's not the government stopping me but gravity.
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Note it does n-o-t say,
"the right of the people to keep and bear *any* arms *without limitations* shall not be infringed?"
You simply assumed that in the absence of any modifiers that the default was one extreme case.
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The first part adds context and context tends to matter.
Consider an alternative:
"Guaranteeing one's ability to hunt currently being a popular desire, the right of the people to keep and bear arms shall not be infringed."
or
"For the purposes of hunting, the right of the people to keep and bear arms shall not be infringed."
These imply different shades of gray.
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There's quite a lot left to argue about, obviously. :)
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In the body of the constitution it defines a militia as an armed body of troops. Anywhere else it uses the word people in the other amendments it is talking about the entire body of citizens and the meaning is that the citizens might need those arms to protect themselves from government run amok along with from thieves and other dangers.
If you read the Federalist papers it's quite obvious that protection from government was one of the reasons.
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You think it means the states? Look at the tenth amendment. "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." This clearly shows that "the United States", "the states", and "the people", as used in the Bill of Rights, are all different things. If the Second Amendment was supposed to refer to states, they would have said states. But they said "the people", so it refers to the people.
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Good ol' politics.
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Do you live ...
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Which makes it much more than just the areas on the ACLU's map.
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Says who?
"The term `reasonable distance,' as used in section 287 (a) (3) of the Act, means within 100 air miles from any external boundary of the United States or any shorter distance which may be fixed by the district director"
It clearly says EXTERNAL BOUNDARY. Unless you're thinking of some other law.
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They can't just search any laptop in that 100-mile range. Instead of pumping out mindless FUD all day long that you're too dishonest to defend in the comments, why don't you write one single article where you thereafter defend even one or two of the silly points you make. Why do you keep publishing idiotic nonsense like this? I have never seen anyone care so little about truth. Seriously. You pretend to be a "evidence-based" person. Yet you seem to have next to no evidence about border search law. You don't care about evidence. You ONLY care about spreading FUD.
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~ Albert Einstein
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-Zunshine Healz
Rad/Rad Defender
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"They can't just search any laptop in that 100-mile range."
An interesting contention. Let's see what you have to back it up,
" mindless FUD "
" you're too dishonest"
"care so little about truth."
"You ONLY care about spreading FUD."
"being a coward "
" Total fake. Total coward. Only cares about spreading hate and FUD."
" He writes this blog for the idiots. He's too insecure to be challenged."
So yes. You have done a great job defending your point of view with evidence and relevant links, and TOTALLY not any ad homs at all. The above quotes show that you, truly, are all about discussing things based on merits and not just silly name calling.
Is this guy serious?
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The search still has to qualify for the so-called border search exception. Not all searches within that 100 miles are border searches, so regular Fourth Amendment law would apply. There's a series of Supreme Court cases that explicitly discuss this exception (including the magic 100 mile number that Mike pretends isn't the law).
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Ah fuck, I'm not gonna bother. You're just here to spread the hate.
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Border Patrol -- 100 miles from border -- strikes fear in the community
https://www.youtube.com/watch?v=N4ZmSUfYYOY
Telemundo 52 documented the U.S. Border Patrol's recent activity in Corona, California -- a city more than one hundred miles from the U.S./Mexico border.
Border Patrol (100 miles from the border)
https://www.youtube.com/watch?v=NPOuj-WzAoA
BORDER BORDER BORDER. MILK MILK MILK.
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They can search for illegals in that 100 mile zone. They CANNOT take your laptop for no reason. Unless you have a REALLY big case on the thing that an illegal might be hiding in.
It's now the job of your side of the argument to show otherwise, if you want to convince me.
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What is it exactly that you want me to demonstrate? I'm not following you.
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And chances are that most searches within that 100 mile zone are not "border searches." You might want to read the Almeida-Sanchez and the Brignoni-Ponce cases from the Supreme Court. The Court agrees that not all searches in that 100 mile zone are reasonable. You can be searched within 100 miles of a border, yet not have it be a "border search."
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The 100 miles thing isn't some constitutional limit. They do "border searches" at the St. Louis airport.
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Yeah, you're going to have to come over here real quick so that we can search your "border".
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The Supreme Court's interpretation of the Constitution is the supreme law of the land. As the Constitution says, we are free from "unreasonable searches and seizures." The issue becomes one of reasonableness: Is a given search reasonable or not? Whether the search is reasonable turns on the facts. According to the Court, when the search is done at a border, no suspicion or warrant is needed for the search to be reasonable. It's not that the Fourth Amendment doesn't apply at the border, it's that what's reasonable changes because it's at the border.
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Here's a few:
http://scholar.google.com/scholar_case?q=413+U.S.+266+&hl=en&as_sdt=2,19&case=69 33260753627774699&scilh=0
http://scholar.google.com/scholar_case?q=473+U.S.+531&hl=en& ;as_sdt=2,19&case=279694717208509367&scilh=0
http://scholar.google.com/scholar_case?q=428 +U.S.+543+&hl=en&as_sdt=2,19&case=12168013009786458670&scilh=0
http://scholar.goo gle.com/scholar_case?q=422+U.S.+873+&hl=en&as_sdt=2,19&case=17010248136028194244&sci lh=0
http://scholar.google.com/scholar_case?q=422+U.S.+891+&hl=en&as_sdt=2,19&case=93 0526622971426401&scilh=0
http://scholar.google.com/scholar_case?q=462+U.S.+579+&hl=en& ;as_sdt=2,19&case=13366850492031728795&scilh=0
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"There is no principle in the jurisprudence of fundamental rights which permits constitutional limitations to be dispensed with merely because they cannot be conveniently satisfied. Dispensing with reasonable suspicion as a prerequisite to stopping and inspecting motorists because the inconvenience of such a requirement would make it impossible to identify a given car as a possible carrier of aliens is no more justifiable than dispensing with probable cause as prerequisite to the search of an individual because the inconvenience of such a requirement would make it impossible to identify a given person in a high-crime area as a possible carrier of concealed weapons."
Why am I saddened? Because it's in the DISSENT.
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The United States does not contend, see Tr. of Oral Arg. 29, and I do not suggest that any search of a vehicle for aliens within 100 miles of the border pursuant to 8 CFR § 287.1 would pass constitutional muster.
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Title 8 U. S. C. § 1357 (a) provides in pertinent part:
"Any officer or employee of the [Immigration and Naturalization] Service authorized under regulations prescribed by the Attorney General shall have power without warrant—
. . . . .
"(3) within a reasonable distance from any external boundary of the United States, to board and search for aliens any vessel within the territorial waters of the United States and any railway car, aircraft, conveyance, or vehicle, and within a distance of twenty-five miles from any such external boundary to have access to private lands, but not dwellings, for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States . . . ."
The Court of Appeals also relied on 8 CFR § 287.1, which in relevant part provides:
"(a) (2) Reasonable distance. The term `reasonable distance,' as used in section 287 (a) (3) of the Act, means within 100 air miles from any external boundary of the United States or any shorter distance which may be fixed by the district director, or, so far as the power to board and search aircraft is concerned, any distance fixed pursuant to paragraph (b) of this section."
So does DHS actually claim they can search laptops 100 miles from the border? The statute here says they can search "for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States". Clearly, a laptop cannot contain an alien, so it could not be searched under this law.
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(c) Search without warrant
Any officer or employee of the Service authorized and designated under regulations prescribed by the Attorney General, whether individually or as one of a class, shall have power to conduct a search, without warrant, of the person, and of the personal effects in the possession of any person seeking admission to the United States, concerning whom such officer or employee may have reasonable cause to suspect that grounds exist for denial of admission to the United States under this chapter which would be disclosed by such search.
This means, perhaps, they can search the laptop of "any person seeking admission to the United States" without a warrant. A person who is already here is not a "person seeking entry" no matter HOW close to the border they are. So this law does not apply.
My question is: Did DHS EVER actually say that they had the right to search laptops 100 miles from the border? Or did people just string several laws together and make bad assumptions?
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You're thinking about this far more than Mike did. The document that got this latest round of malcontents stirred up is here: http://www.dhs.gov/sites/default/files/publications/crcl-border-search-impact-assessment_01-29-13_1. pdf
Relevant directives include CBP directive: http://www.dhs.gov/xlibrary/assets/cbp_directive_3340-049.pdf and ICE directive: http://www.dhs.gov/xlibrary/assets/ice_border_search_electronic_devices.pdf
Ninth Circuit opinion that's on point: http://cdn.ca9.uscourts.gov/datastore/opinions/2011/03/30/09-10139.pdf
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ICE and CBP exercise longstanding constitutional and statutory authority permitting suspicionless and warrantless searches of merchandise at the border and its functional equivalent. Two public Directives issued in 2009 (CBP Directive No. 3340-049 “Border Search of Electronic Devices Containing Information” and ICE Directive No. 7-6.1 “Border Searches of Electronic Devices”) impose requirements governing use of this authority in searching, reviewing, retaining, and sharing information contained in electronic devices.
I believe the operative phrase is "warrantless searches of merchandise at the border and its functional equivalent."
Functional equivalent I'd say is their 100 mile zone and airport check points.
also in the next section:
Fourth Amendment
The overall authority to conduct border searches without suspicion or warrant is clear and long-standing, and courts have not treated searches of electronic devices any differently than searches of other objects. We conclude that CBP’s and ICE’s current border search policies comply with the Fourth Amendment. We also conclude that imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/civil liberties benefits. However, we do think that recording more information about why searches are performed would help managers and leadership supervise the use of border search authority, and this is what we recommended; CBP has agreed and has implemented this change beginning in FY2012.
Here this is the next step they take thinking they are acting in a manor that doesn't not help our civil rights. If you can parse out that crap you are better at English than I am.
We also conclude that imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/civil liberties benefits.
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I believe the operative phrase is "warrantless searches of merchandise at the border and its functional equivalent."
Functional equivalent I'd say is their 100 mile zone and airport check points.
"Functional equivalent" is NOT that entire 100 mile zone. "Functional equivalent" means things like airports. That's made clear in the Supreme Court cases I cited above. FUD-packing fact-haters like Mike want to scare people into thinking that DHS can do suspicionless/warrantless searches anywhere in that 100 mile zone. That is not what DHS said, and it's not the law. It's complete FUD.
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UNITED STATES OF AMERICA v. I.E.V.
'Our Circuit “has previously recognized only two circumstances when a car and its passengers are properly subject to ‘extended border searches’ away from the border.” United States v. Perez, 644 F.2d 1299, 1302 (9th Cir. 1981). The first circumstance is where the “officers can determine ‘with reasonable certainty’ that any contraband which might be found in the vehicle was aboard the vehicle when it crossed the border.” Id. (quoting Alexander v. United States, 362 F.2d 379, 382 (9th Cir. 1966)). The second circumstance where an “extended border search is valid” is when “customs agents are ‘reasonably certain’ that parcels have been smuggled across the border and placed in a vehicle, whether or not the vehicle itself has actually crossed the border.” Id. (quoting United States v. Weil, 432 F.2d 1320, 1323 (9th Cir. 1970)). “[R]easonable certainty is a stricter standard than probable cause.” Id. (internal quotation marks omitted) (citing United States v. Kessler, 497 F.2d 277, 279 (9th Cir. 1974)). There is no dispute that neither factual situation occurred in this case.'
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I base my knowledge on texts and never got out to see what is really happening right under my nose.
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Wow...
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Cute dig. What have I read that I do not understand?
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Then we will all be equally well informed.
We will wait here.
TLDR: Put up or Shut Up
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So I would offer some more recent information. I link to the article, because the link to the decision is broken, but I will look for it when I have some time.
From 2008 "Border Agents Can Search Laptops Without Cause, Appeals Court Rules BY RYAN SINGEL04.22.083:21 PM"
http://www.wired.com/threatlevel/2008/04/border-agents-c/
I would also point to the following:
"Border rules revised on search, seizure of electronics, digital files"
http://www.cnn.com/2009/US/08/27/borders.computers/
Again failed links are preventing me from quickly locating the actual DHS rules or the opinion from 2008.
So you are offering decisions that are 25-40 years old, when there are a lot of new laws on the books since 9/11. DHS is granted a lot of authority to 'make law' so that they can 'move quickly' to thwart 'terrorism'.
Let's look for some law since 9/11 and preferably in the last 3 - 5 years.
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Still good law.
More recent decision on point from Ninth Circuit: http://cdn.ca9.uscourts.gov/datastore/opinions/2011/03/30/09-10139.pdf
The notion that the feds can seize and search any computer they want in that 100-mile zone is so stupid that it hurts. Perfect fodder for the TD brain trust, no doubt. But stupid.
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What exactly are you even arguing here? Yes, it is stupid that the feds think they can seize and search any computer they want. We all agree on that. What precisely are you saying (pertinant to this article please, no rants about Mike) that runs counter to what this article is about?
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Everyone here agrees that this would be unconstitutional. Did DHS ever say otherwise? If so, can you provide a link?
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They don't have that authority, nor have they said they did. It's the FUD-masters like Mike that's turning this into a "Constitution-Free Zone" where DHS can just do whatever it wants. They can't. All they said was the fact that they have the authority to conduct border searches and seizures away from the border under certain conditions.
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So on the one hand we've got rulings that say boarder patrol checkpoints 100 miles from the border are a-ok and on the other hand we've got rulings that say laptop searches at the border without suspicion are fine. What does that mean? Is there some reason laptop border searches would have different proximity rules compared to 'searches for illegals?' And how can you unequivocally state that "clearly, a laptop cannot contain an alien, so it could not be searched under this law" absent any guidance given that a laptop search could very easily be argued to be pursuant "to prevent the illegal entry of aliens into the United States." Nothing in that clause suggest that such searches are limited to searching for actual aliens, just for things that, when found, would help prevent the entry of aliens to the United States.
What's an average citizen to make of all these grey area absent a clear ruling or a precisely worded statue? I guess they could take your track and just have faith that border patrol agents will exercise their discretion to the most limited extent possible in spite of all the examples to the contrary and weak catch-all excuses like "well if the border agent performed a search he must have had cause."
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No. It says aliens. Not things that will help them search for aliens. Aliens.
http://www.law.cornell.edu/uscode/text/8/1357
"within a reasonable distance from any external boundary of the United States, to board and search for aliens any vessel within the territorial waters of the United States and any railway car, aircraft, conveyance, or vehicle"
(the "reasonable distance" being 100 miles, as per http://www.law.cornell.edu/cfr/text/8/287.1)
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Which is why I provided that handy link, so you could read it in context. It was about half of section 287(a)(3) (which is the only section the 100 miles rule applies to), and the other half was about patrolling private land within 25 miles of the border.
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http://www.law.cornell.edu/uscode/text/8/1357
"within a reasonable distance from any external boundary of the United States, to board and search for aliens any vessel within the territorial waters of the United States and any railway car, aircraft, conveyance, or vehicle"
(the "reasonable distance" being 100 miles, as per http://www.law.cornell.edu/cfr/text/8/287.1)
I get what you're saying. It does say that the 100 mile thing is to search for aliens. Since the computer seizure is a property search for contraband, that 100 mile thing doesn't appear to apply. My guess would be that the 100 mile thing is where they can set up a checkpoint to find aliens. Once a checkpoint is set up, it's a "border search" and the Fourth Amendment rules that apply to such searches are in force. Or there could be other statutes that apply that you're just not looking at. I dunno the answer to that one. I'd have to research it. Nice work.
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I think you're misunderstanding the Fourth Amendment issues at checkpoints. The Court says this: United States v. Martinez-Fuerte, 428 U.S. 543, 557-59 (1976)
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Take for instance the 2nd amendment. What do you think the words "shall not be infringed" mean. It's really a simple little phrase that anyone with an elementary reading level is capable of comprehending. However, we have plenty of legislators and judges that continue to make and justify laws that violate this on it's face.
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I don't think it violates the spirit. The test described in the Fourth Amendment is reasonableness. What's reasonable at the border (or its functional equivalent) is different than what's reasonable elsewhere. I also think there's some confusion here about whether the DHS actually has claimed that it can perform a "border search" anywhere in that zone. I don't think they did claim that, nor would it be true if they did. They can certainly perform searches in that zone, but those searches would necessarily be "border searches" that can be conducted without suspicion/cause/warrant.
Take for instance the 2nd amendment. What do you think the words "shall not be infringed" mean. It's really a simple little phrase that anyone with an elementary reading level is capable of comprehending. However, we have plenty of legislators and judges that continue to make and justify laws that violate this on it's face.
I have never studied or thought about the Second Amendment, so I don't have an intelligent answer to give you without researching the language a bit. I could compare it to the First Amendment that says free speech shall not be abridged. Whether something abridges free speech or not leaves a lot of wiggle room since "abridge" can mean lots of things.
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"Well it depends on the meaning of the word 'is'";
Twist and turn it until it means what you want. That's what you are doing. The intention of the 4th amendment is clear regardless of what any of the other laws or judicial decisions are.
Border Patrol officers belong at the border and other points of entry. Period. That is where their mandate ends. We have plenty of other law enforcement agencies to handle everything else.
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You say that like it's a bad thing. ;)
Border Patrol officers belong at the border and other points of entry. Period. That is where their mandate ends. We have plenty of other law enforcement agencies to handle everything else.
Their mandate explicitly doesn't end at the border. In fact, I believe they have the power to make a search and seizure anywhere in the United States.
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"Even if I HAD done what you are accusing me of, last I checked adultery wasn't against the law, and my personal life is MY personal life, so when you have a question that concerns the business of running the country, come back to me. Until then BUTT THE FUCK OUT of my personal life."
I would have had a lot more respect for him if he would have had the balls to give that sort of response.
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I agree with you, but drunk driving checkpoints have been found valid by the courts. May as well extend that map to include the entire US.
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That's a valid point of view, but I disagree. I think that checkpoints, such as for DUI on New Year's Eve or for aliens 50 miles from the Mexican border, are perfectly reasonable. The test is reasonableness, and sometimes checkpoints are reasonable even without suspicion.
Our country was founded on the principles of being a free society of citizens who are innocent until proven guilty. Asking a person who has done nothing other than traveling about the country to even produce identification proving that they are indeed a legal citizen is in an of itself a violation of this principle. If there is no probable cause, why should a citizen have to prove that he is not an here illegally when traveling within the country? You are not supposed to have to prove your innocence.
Passing through a checkpoint doesn't change the presumption that you're innocent. The reasonableness of the checkpoint stems from the government's interest in enforcing the laws.
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I completely understand the rationale behind it. My argument is that it is not reasonable and it violates the spirit of the 4th amendment.
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I'm sure that's a part of it, but I don't think that's the only reason. I've had two friends die because of drunk drivers. I think that law enforcement legitimately want to prevent such things, and I'm all for them setting up whatever checkpoints they want within reason.
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Also a false accusation of DUI can effectively ruin someone's life as well. The cost of fighting one (as well as just taking the plea to get it over with) is WAY too high. There is no accountability for the officers and prosecutors handling these and WAY too much incentive for them to make the arrest and prosecute the case anyway. I've had friends that have been through this.
And what is with these mandatory blood tests on holiday weekends? You don't just through out your legal rights just because it happens to be a holiday? You still have the right to have an attorney present and any attempt to forcefully take blood for a blood test is still a violation of those rights.
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Also a false accusation of DUI can effectively ruin someone's life as well. The cost of fighting one (as well as just taking the plea to get it over with) is WAY too high. There is no accountability for the officers and prosecutors handling these and WAY too much incentive for them to make the arrest and prosecute the case anyway. I've had friends that have been through this.
And what is with these mandatory blood tests on holiday weekends? You don't just through out your legal rights just because it happens to be a holiday? You still have the right to have an attorney present and any attempt to forcefully take blood for a blood test is still a violation of those rights.
I want law enforcement to take drunk drivers off the street without violating their rights. I think that a reasonable checkpoint does just this. You imply that all checkpoints are unreasonable. I disagree. I say the more the better. I want every drunk driving asshole to have to look a law enforcement officer in the eye before they're allowed to drive on inch more.
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I don't like drunk driving any more than you do. I think they all deserve what they get. The difference with me is that I want them to have DUE PROCESS first. Not throw out the rights just because it's a target rich environment for the city to make it's yearly budget quotas.
And you don't seem to care that people who aren't guilty of anything happen to get caught up in all this and that there is no accountability for making a false accusation where that costs thousands of dollars and lots of time and energy to defend. You don't care that innocent people are collateral damage in the process.
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What happened then was many of the people who initially had embraced the concept of being safe by giving up their ability to drive themselves found themselves facing hefty fines anyway, and reasoned that if they were going to be ticketed anyway they might as well drive themselves. And the rates went right back up. Now tell me that is the police acting in the interest of the safety of the public.
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Apparently, not knowing doesn't stop the ACLU from making maps and claiming it's a Constitution-free zone.
"What's an average citizen to make of all these grey area"
Apparently, they make a map of it.
OK, but seriously... You can argue that the rule that allows them to search laptops at the border without a warrant is bad. You can argue that the rule that allows them to search for illegals 100 miles from the border without a warrant is bad. But it is counterproductive to claim that this means they claim they can search laptops 100 miles from the border. The law doesn't say this, they never said this (again, if I'm wrong on this, correct me) and it takes away from the actual arguments you can make about stuff they are ACTUALLY doing. It's not like they've been so restrained that you have to make stuff up to criticize them.
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The map by the ACLU is based on the clear language of the statue you've quoted multiple times while arguing hear about the specific application of laptop searches. That there is no clear picture of the limits of their power on laptop searches doesn't mean there is no clear picture on all of their powers. The clearly have the power to conduct warrantless, suspicionless searches within 100 miles of the border for 'aliens.' A fact you've pointed out multiple times but apparently it never clicked that this was a suspension of the 4th amendment. Go figure.
You think it doesn't based on your interpretation of the law. Yours is not the interpretation that matters. Given the facts at hand 'Does this mean the DHS is saying they have the power to search laptops up to 100 miles from the border?' is a perfectly reasonable query. That you think you have a definitive answer to this query notwithstanding.
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Well, yes. But the law says what it says. When it says aliens, it does not mean laptops. If you find an interpretation of the law by any member of government that says otherwise, let me know.
"The clearly have the power to conduct warrantless, suspicionless searches within 100 miles of the border for 'aliens.'"
Not exactly.
Almeida-Sanchez v. United States.
"The United States does not contend, see Tr. of Oral Arg. 29, and I do not suggest that any search of a vehicle for aliens within 100 miles of the border pursuant to 8 CFR § 287.1 would pass constitutional muster."
(This was the dissent, but note that the Court overturned the search in this case - even the members of the Court who would have made that search legal explicitly said that not all such searches are constitutional.)
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Almeida-Sanchez v. United States.
"The United States does not contend, see Tr. of Oral Arg. 29, and I do not suggest that any search of a vehicle for aliens within 100 miles of the border pursuant to 8 CFR § 287.1 would pass constitutional muster."
(This was the dissent, but note that the Court overturned the search in this case - even the members of the Court who would have made that search legal explicitly said that not all such searches are constitutional.)
That's a great case to look at since the Supreme court there found that a search that was 20 miles from the Mexican border wasn't a "border search." Almeida-Sanchez v. United States, 413 U.S. 266, 272-73 (1973).
What evidence-ignoring FUD-packers like Mike are missing is that just because the search happens near the border, it's not necessarily a "border search" where the different Fourth Amendment rules apply. Almost all searches in this "Constitution-Free Zone" would be governed by the regular probable cause standards since they wouldn't be "border searches."
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But look at the very first sentence in this article.
"Earlier this week, we wrote about the latest defense by Homeland Security of their laptop search policies that (they claim) give them broad coverage to search laptops within 100 miles of the border."
It isn't asking "Does this mean the DHS is saying they have the power to search laptops up to 100 miles from the border?", it's flat out stating that DHS is claiming these powers. But I see nowhere any actual claim of that by DHS.
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I never said that they said that, nor do I believe it to be true. The point of the map, which I thought was clearly stated, was to highlight how ridiculous their specific contentions are that they have some ability to search laptops within a 100 mile radius of the border.
I specifically stated in the post that no one actually believed those were "Constitution free zones." The point of the map was to make a point about the specific DHS contention.
You either know that or you are the one spreading FUD.
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But they absolutely CAN search laptops if certain conditions are met. The fact of the matter is that laptops can be searched anywhere in the United States, whether near the border or not. The issue here is whether the searches are legal. When it's a "border search," which is a term of art that has very specific meaning, then no suspicion or warrant is needed. When it's not a "border search," then regular Fourth Amendment rules apply. The mistake you're making is in thinking that they are saying that any search that occurs within 100 miles of the border is a "border search." It's not, nor did they say that. As the case law I quoted above demostrates, searches near the border are not necessarily "border searches." In fact, the vast majority of searches that take place in that 100 mile zone would not be "border searches" and would thus be governed by the usual probable cause/warrant standard. You don't point out any of this in your article because you're just a FUD-pumper.
I specifically stated in the post that no one actually believed those were "Constitution free zones." The point of the map was to make a point about the specific DHS contention. You either know that or you are the one spreading FUD.
You're the one that wrote an article with the FUD-filled title asking whether someone lives in a "Constitution-Free Zone." If, as you admit, there is no such thing, then you must concede that asking the question itself is pure FUD since it implies that such a thing exists. The fact is, what's a reasonable search under the Fourth Amendment changes with the circumstances. A search of your luggage at the border without warrant or suspicion is perfectly reasonable, but a body cavity search without suspicion is not. Away from the border, a suspicionless search is not reasonable. That doesn't mean that there's no Fourth Amendment protection at the border. It just means that the Fourth Amendment test is one of reasonableness, and what's reasonable changes with the facts.
I'd be happy to explain why pretty much everything you write day in and day out on TD is pure FUD, but I know you'll run away as soon as you start to look bad because you're a dishonest sissy who can't take criticism.
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Translation: I'm sad because I can't slay the imaginary dragon plaguing the world.
It's okay AJ, there are more important things in this world than ego.
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But please, please tell me: WHERE did they make this specific contention? Because the law says they can only search for aliens within that 100 mile range, not laptops.
They may have "some ability" to search a laptop 100 miles from the border, but so does the local police. Wouldn't they at least need either probable cause of a crime (bringing it to about the level of any other enforcement agency), or be reasonably certain (a higher standard than probable cause) that the laptop was directly taken there from outside the US? If they ever claimed otherwise, please show me where.
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This is seen everywhere like the Librarian of Congress deciding every three years if it is legal to unlock a smartphone.
Allowing the EPA to establish the rules about pollution is another example of giving a governmental body (other than congress) the power to "make law".
Can we agree that it is well accepted practice that US Customs (a division of DHS) can search laptops at the border?
I think that answer is yes.
Can we agree that US Customs (a division of DHS) is searching people in locations other than at the border without cause?
Perhaps you don't think that is happening.
I offer:
http://americanvisionnews.com/1058/homeland-security-begins-random-armed-checkpoints
https: //www.checkpointusa.org/DHS/homelandSecurity.htm
Just do a search for "DHS Security Checkpoints" for some interesting reading.
So legal or not DHS is doing searches other than "At the Border" and against American citizens. It is not a huge leap to expect that they might try to search your laptop since that is an 'authority' they have 'at the border'. and DHS now claims that anything within 100 miles of the border, is "the border". They have already gone way beyond what actual legal authority they really have.
There are a lot of 'illegal' things that go on in this country. That doesn't mean they don't happen.
Perhaps that is the area of disagreement, you seem to be of the opinion the DHS would never 'cross the line'. In fact they cross the line daily, and people rarely push back, which gives them reason to push just a bit more.
I certainly am not saying it is legal, I will say it happens. I have been illegally stopped, searched, and they did take my smartphone (though it was returned and I was released with no citation issued after 10 minutes).
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https://www.youtube.com/watch?v=N4ZmSUfYYOY
Telemundo 52 documented the U.S. Border Patrol's recent activity in Corona, California -- a city more than one hundred miles from the U.S./Mexico border.
Border Patrol (100 miles from the border)
https://www.youtube.com/watch?v=NPOuj-WzAoA
The laws and what is actually done on the streets are two different things.
DHS Checkpoint Blog Entry 6: Quasi-Detention
https://www.youtube.com/watch?v=yHqpuVetLeo
This is the way to handle an illegal checkpoint.
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And what exactly does it mean?
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And that's FUD. A search without suspicion/cause/warrant can only happen if it's a "border search." Not all searches in that zone are "border searches." In fact, unless it's at the border or its equivalent, then other rules apply. See above citation about checkpoints.
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Where is this wrong?
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This sites been going downhill for ages, and mike doesn't write anything but FUD articles taken way out of context. Although, you should have posted some sort of evidence (link?) to back up your statement; otherwise I have little choice but to fear this 100 mile nonsense.
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Yeah, I'm sure you are absolutely correct.
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(Note: Despite the above quote, women are NOT exempt from Constitution-free treatment. In most cases, "are ya' boy" is replaced with "so we'll likely have to do a strip search to get to the bottom of this broken tail light issue.")
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International Airports?
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Which is a shame, because otherwise the concept in the ACLU map is strong. It really undermines the point when there's a glaring data inaccuracy like this.
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Generally things come into play at the land, otherwise the entire coastal part is wrong since international waters start about 12 miles out (http://en.wikipedia.org/wiki/Territorial_waters)
as a result everything should only be affected 88 miles inland instead of the 100 they are showing, if this is the case.
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Probably will need several and they should probably be 'assault weapons'.
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Is that all?
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I believe the plan is for a double yellow...
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-- "A Child's Treasury of Nonexistent Folklore," by C.L. Tamer, 2013.
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Tilt Error
Atlanta and Denver have international airports. Anything within 100 miles of either of these cities is also within the zone.
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If that's the case, essentially the entire geography of the country would qualify as I'm pretty sure there is an international airport within 100 miles of almost everywhere.
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Whew, that was a close one
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Illegal to stop illegals
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I literally live within 10 miles of the border and as someone pointed out yesterday, there's a checkpoint on the major high between Brownsville and Houston. So between a rock and a hard place I fall. (And that's not counting the other "minor" checkpoint on the back roads to Laredo. So I'm between a rock and two hard places.
Also, AJ, just sign in already. Sheesh man. We all know it's you. There's only one idiot who post the same almost word for word rant against Mike in EVERY single article on a daily basis. It went from cute to annoying to god I hope this guy suffers an aneurysm while sitting in front of his computer real quick.
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Re:
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Maybe...
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Map is Wrong
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Re: Map is Wrong
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Re: Map is Wrong
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Borders / International Airports / Ports
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but masnick we would like you to be honest for a change and post the actual law you are referring to. otherwise you are full of shit.. oh wait.. sorry.
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Hatteras Island, Southern Outer Banks
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Contitution free zone
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Constitutional free zone
The Constitution is not an optional component of our Government or of the laws and authority of the Government. With this current mentality we might as well go back to the absolute Monarchy Government we broke from England to get away from.
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