Tyranny of the Majority at Interior Federal Checkpoints
“I go wherever I wish; I come from whence I wish.”
-- The meaning of ‘freedom’ according to Epictetus[i]
Freedom of movement is a long established civil right in free societies. Today, however, this right has been sacrificed as a part of America’s War on Terror. In the name of preventing illegal entries into the US, citizens across America are being stopped by armed Border Patrol (BP) agents at interior checkpoints—up to 100 miles inside of the border—and asked any of a series of questions: “Do you own this car? Are those your kids? Are you an American citizen?” “What is your social security number? “What is your phone number?” “What company do your work for?” At many of these stops, agents are polite, professional and respectful of the Fourth Amendment. Increasingly, however, it appears that agents are acting aggressively and subjecting citizens—especially Latino citizens—to constitutionally questionable searches, seizures, and detentions (Santos, 2014; Lyall, Bambauer & Bambauer, 2015). In this paper, I will argue that these checkpoints are ineffective at preventing terrorism and that their proliferation is an overreaction to 9/11 that erodes civil liberties and institutes majority tyranny.
“Liberty, or Freedome, signifieth (properly) the absence of Opposition; (by Opposition I mean externall Impediments of motion…”
-- Thomas Hobbes, Leviathan, Chapter XXI
Checkpoints and Terrorism
Historically, Customs and Border Protection’s (CBP) primary mission was to deter smuggling and illegal immigration. However, as a direct result of the September 11th attacks, the primary mission of CBP transitioned to, “...keeping terrorists and their weapons out of the US while facilitating lawful international travel and trade (“About CBP,” 2016; “Border Patrol,” 2005). Responding to recommendations in the 9/11 Commission Report, Congress passed the Intelligence Reform and Terrorism Prevention Act of 2004, which authorized the hiring of 10,000 new Border Patrol (BP) agents over five years (US House, 2005). With this surge in agents came the revival of an old, but rarely used tactic; interior Border Patrol checkpoints.
According to the ACLU (2018), interior Border Patrol checkpoints—within 100 miles of the border—have been authorized by Congress since 1953. Historically, however, very few checkpoints were emplaced. In 1953 there were only about 1100 Border Patrol Agents. Today, however, there are upwards of 21,000 agents. This surge in agents has allowed the number of active interior checkpoints to soar to approximately 170 (ACLU, 2018).
The massive increase in Border Patrol agents and funding since 9/11 has ostensibly been to prevent terrorism. The increase in interior checkpoints is a part of this surge. The checkpoints, however, have been very unsuccessful at apprehending illegal entrants. Santos (2014) reports that in fiscal years 2010-2013, only 2 percent of Border Patrol apprehensions occurred at interior checkpoints. Furthermore, this researcher has been unable to find a single instance of a terrorist being apprehended at one of these checkpoints. These facts raise serious doubts as to if these checkpoints are successful in deterring terrorism. The checkpoints do, however, regularly harass innocent American citizens.
Rights Abuses at Interior Federal Checkpoints
According to government documents obtained through a lawsuit by the ACLU Foundation of Arizona, agents at interior checkpoints have been accused by hundreds of citizens of stops without probable cause, illegal seizures of private property, firearms brandishing, intimidation, racial profiling, foul language, refusal to inform citizens of the reason behind their stop, cutting up vehicle floors without compensation, forced deletion of video recordings of BP encounters from citizens’ phones, refusal of BP agents to provide their names, and illegal detentions. The Border Patrol has refused to investigate the vast majority of these complaints and very few agents have been reprimanded (Lyall et al., 2015).
An empirical analysis of the available data on these stops reveals that Latino citizens are subjected to greater scrutiny than are Caucasian citizens when transiting these checkpoints (Walden, 2016). This is not surprising given that in United States v. Martinez-Fuerte (1976), the Supreme Court upheldthe constitutionality of these checkpoints and decided that federal agents could use "apparent Mexican ancestry," as a valid reason to further inspect persons and their vehicles (Osete, 2016, p. 815).[ii] Though still morally repugnant, this resulted in infrequent abuse of rights before 9/11 when there were very few checkpoints. Today, however, with over 170 checkpoints, this has resulted in daily uncertainty and fear for Latino Americans living in the border region.
Many Latino Americans living in the border region must transit these checkpoints every day, and many live in fear of being arrested, searched, or harassed at said checkpoints. This has relegated Latino Americans to second-class citizenship in the border region; it is a clear example of the tyranny of the majority to which James Madison (1788/2005) refers in The Federalist #51:
“It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part...If a majority be united by a common interest, the rights of the minority will be insecure...Justice is the end of government. It is the end of civil society...In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger.”
Caucasian citizens, who predominantly control government and the courts, have decided that allowing some discrimination is worth the cost in order to prevent terrorism, smuggling, and illegal immigration. Of course, this cost is lower for white citizens, who are typically not subject to the same treatment at these checkpoints as are Latinos. Latino citizens have little say in the matter because they represent a minority in government. These checkpoints, the proliferation of which are a reaction to 9/11, have not made America safer—they have compromised her very democratic nature.
Civil Liberty vs. Counterterrorism
According to Martha Crenshaw (1981), terrorism is caused by three things: 1) permissive conditions, 2) motivations, and 3) some precipitant that sparks an attack. As a democracy, America provides the permissive conditions for terrorism. Civil liberties such as freedom of movement, assembly rights, and search and seizure protections reduce the risk of engaging in terrorism and inhibit counterterrorism efforts (Drakos and Gofas, 2006). America also provides ample motivation for terrorists with its heavy military and diplomatic engagement overseas (Neumayer and Plumper, 2011; Bergen and Reynolds, 2005). A precipitant could be almost anything that provides the final push for an actor to engage in terrorism. Because the US does not wish to reduce motivations for terrorism by altering its foreign policy, and because precipitants are nearly impossible to control, the US government has attempted to curtail the permissive conditions that enable terrorism on American soil. Thus, civil liberties have been infringed upon as a part of US counterterrorism strategy. This is why we have interior military-style checkpoints manned by agents that allegedly ignore the constitution when interacting with citizens. In this researcher's mind, this is a major victory for Usama Bin Laden; an attack that occurred seventeen years ago has fundamentally changed the nature of American democracy. It seems the US has fallen into the all-too-common trap of undermining its own democratic values in order to fight terrorism (Jebb, 2003).
“Is a democracy, such as we know it, the last improvement possible in government? Is it not possible to take a step further towards recognizing and organizing the rights of man? There will never be a really free and enlightened State, until the State comes to recognize the individual as a higher and independent power, from which all its own power and authority are derived, and treats him accordingly.”
-- Henry David Thoreau, Civil Disobedience
Though government derives its power and authority from the majority, individual rights are an essential part of the American republic. The tyranny of the majority must be combated in order to maintain peace and security in our society. In its domestic effort to prevent terrorism, the US government has trampled on the rights of Latino Americans. Tragically, this compromise of American values has been carried out to combat an issue (terrorism) that kills less than a tenth of a percent of the total number of deaths by murder in the country in a given year (Thrall and Goepner, 2017). If America is to be a “free and enlightened state,” the majority must recognize the rights of all Americans. These checkpoints should be removed, and the Border Patrol should return to the border, where it was designed to operate.
About CBP. (2016, November 21). Retrieved February 26, 2018, from https://www.cbp.gov/about
ACLU Report: Border Patrol’s “Interior Enforcement” Records Show Systemic Abuse, Few Apprehensions. ACLU of Arizona. (2015, October 15). Retrieved from https://www.acluaz.org/en/press-releases/aclu-report-border-patrols-interior-enforcement-records-show-systemic-abuse-few
Border Patrol: Available Data on Interior Checkpoints Suggest Differences in Sector Performance. (2005). Government Accountability Office. GAO-05-43. Retrieved from https://www.gao.gov/assets/250/247179.pdf
CBP Policy on Nondiscrimination in Law Enforcement Activities and all other Administered Programs. (n.d.). Retrieved from https://www.cbp.gov/about/eeo-diversity/policies/nondiscrimination-law-enforcement-activities-and-all-other-administered
Crenshaw, M. (1981). The Causes of Terrorism. Comparative Politics, 13(4), 379-399. Retrieved from http://courses.kvasaheim.com/hist319a/docs/Crenshaw%201981.PDF
Drakos, K., & Gofas, A. (2006). In Search of the Average Transnational Terrorist Attack Venue. Defence and Peace Economics, 17(2), 73-93. Retrieved from http://www.tandfonline.com/doi/pdf/10.1080/10242690500445387?needAccess=true
Hobbes, T. (1904). Leviathan: Or, The Matter, Forme & Power of a Commonwealth, Ecclesiasticall and Civill. Retrieved from https://books.google.com/books/about/Leviathan.html?id=2oc6AAAAMAAJ
Jebb, C. (2003). The Fight for Legitimacy: Liberal Democracy Versus Terrorism. Journal of Conflict Studies, 23(1). Retrieved from https://journals.lib.unb.ca/index.php/JCS/article/view/354/554
Lyall, J., Bambauer, J., & Bambauer, D. (2015, October). Record of Abuse; Lawlessness and Impunity In Border Patrol's Interior Enforcement Operations. ACLU of Arizona. Retrieved from http://www.acluaz.org/sites/default/files/documents/Record_of_Abuse_101515_0.pdf
Madison, J. Hamilton, A. and Jay, J. (1787-1788) The Federalist Papers. New York: Signet Classics, an imprint of New American Library, a division of Penguin Group (USA), 2005.
McAdam, J. (2011). AN INTELLECTUAL HISTORY OF FREEDOM OF MOVEMENT IN INTERNATIONAL LAW: THE RIGHT TO LEAVE AS A PERSONAL LIBERTY. Melbourne Journal of International Law,12. Retrieved 2011, from http://law.unimelb.edu.au/__data/assets/pdf_file/0011/1686926/McAdam.pdf
Neumayer, E., & Plumper, T. (2011). Foreign Terror On Americans. Journal of Peace Research, 48(1), 3-17. Retrieved from http://eprints.lse.ac.uk/30794/1/__Libfile_repository_Content_Neumayer,%20E_Foreign%20terror%20on%20Americans_Foreign%20terror%20on%20Americans%20(LSE%20RO).pdf
Osete, J. A. (2016). The Praetorians: An Analysis of U.S. Border Patrol Checkpoints Following Martinez-Fuerte. The Washington University Law Review,93(3). Retrieved from https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=6202&context=law_lawreview.
Privacy at Borders and Checkpoints. (n.d.). ACLU. Retrieved February 19, 2018, from https://www.aclu.org/issues/privacy-technology/privacy-borders-and-checkpoints
Santos, F. (2014, June 27). Border Patrol Scrutiny Stirs Anger in Arizona Town. The New York Times. Retrieved February 26, 2018, from https://www.nytimes.com/2014/06/28/us/border-patrol-scrutiny-stirs-anger-in-arizona-town.html?action=click&contentCollection=U.S.&module=RelatedCoverage®ion=EndOfArticle&pgtype=article
The Constitution in the 100-Mile Border Zone. American Civil Liberties Union. Retrieved February 26, 2018, from https://www.aclu.org/other/constitution-100-mile-border-zone
The U.S. Border Patrol: Failure of the Administration to Deliver a Comprehensive Land Border Strategy Leaves Our Nation’s Borders Vulnerable. Prepared by the Minority Staff of the Committee on Homeland Security, U.S. House of Representatives. (2005, May). Retrieved from https://www.globalsecurity.org/security/library/report/2005/050524-border-final-version.pdf
Thoreau, H. D. (1987). Walden and Civil Disobedience. Middlesex: Penguin Books.
Thrall, T., & Goepner, E. (2017, June 26). Step Back Lessons for U.S. Foreign Policy from the Failed War on Terror. The Cato Institute. Retrieved from https://object.cato.org/sites/cato.org/files/pubs/pdf/pa-814.pdf
Tilly, C. (1992). Cities and States in World History. In Coercion, Capital and European States, A.D. 990-1992 (Revised Edition, pp. 1-36). Cambridge, MA: Wiley-Blackwell.
Walden, A. (2016, August 11). Checking up on Border Patrol Checkpoints to Stop Racial Profiling. ACLU. Retrieved February 28, 2018, from https://www.aclu.org/blog/immigrants-rights/ice-and-border-patrol-abuses/checking-border-patrol-checkpoints-stop-racial
[i] Epictetus (55-135 C.E.) was a Greek Stoic philosopher. This quotation was found in McAdams 2011, pg. 6.
[ii] It should be noted that the Border Patrol claims it does not engage in this racial profiling, yet a thorough reading of their anti-discrimination policy reveals that they do give themselves permission to racially profile “... when a compelling governmental interest is present” (“CBP Policy”).