Legal Commentary

Border Searches as Harassment Threatened

By Professor University of Miami School of Law

It's stuff like this that gets me mad at the Obama administration:

According to the NYT in Gates Cites Peril in Leak of Afghan War Logs by WikiLeaks, US immigration officials (along with the Army’s criminal investigation division) stopped US citizen Jacob Appelbaum to question him about his involvement (which he denies) in the Wikileaks somewhat Pentagon-papers-like release of US classified documents detailing how the war in Afghanistan is going less well than advertised.

So far, well that's routine. If the cops want to interview a suspect or even a possible witness to a crime and find him at the border, as I understand it (I'm not an expert here, I'm repeating what I've been told and invite corrections) they can detain him for questioning. And why not? If law enforcement have adequate grounds to arrest or detain someone inside the US, why should they have to play catch and release with criminal suspects (or even witnesses) at the border? Similarly, if the Army is involved in the investigation of a leak of their documents, I can't see a principled reason why they can't participate in an arrest or interrogation. But that's not what's at issue here:

Mr. Appelbaum said the agents at Newark Airport refused him access to a lawyer and threatened to detain him for similar questioning whenever he re-entered the country after traveling abroad, which he said he did twice a month for a day job as an online software developer.

“They questioned my ability to re-enter the U.S. even though I'm a U.S. citizen,” he said in a telephone interview from Las Vegas. “It's very troubling to think that every time I cross the border, I'd get this treatment.”

Two problems here: First, not giving a US citizen access to a lawyer when he's being questioned about a crime he's apparently suspected of knowing about or participating in. Second, threatening to misuse the US's border control powers to harass a citizen's lawful movements across the border not because he's suspected of carrying any contraband, but because he exercises his Fifth Amendment right.

Immigration law is quicksand for civil rights, so it's conceivable to me (recall that I'm not an immigration lawyer) that the no-lawyer rule is supported by some law or precedent, although I still think it's not in keeping with our traditions or aspirations for the rule of law. (Mr. Appelbaum had the fortitude to refuse to talk without a lawyer for the three hours he was detained.) But the idea that it might be proper to threaten to harass someone routinely at the border, much less carry out such a threat, strikes me as not only clearly illegal but very ugly. I think this threat from US immigration or customs officials would be illegal in any context when directed at a US citizen, but the case is even more clear when in response to a valid assertion of a Fifth Amendment right not to speak when interrogated.

I doubt Mr. Appelbaum wants to sue about this, but it seems to me that the particularity of the threat against him would give him standing to seek declaratory and perhaps injunction relief despite the bar on general suits of this nature set up in Los Angeles v. Lyons, 461 U.S. 95 (1983).

Views from those knowledgeable about such things welcomed.

Full post as published by Discourse.net on August 03, 2010 (boomark / email).