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The US-Mexico Border: Where the Constitution Goes to Die

How does the Border Patrol treat its critics? Shena Gutierrez found out the hard way.

| Tue Jul. 15, 2014 4:56 PM EDT
The US-Mexico border near San Diego.

This story first appeared on the TomDispatch website.

Shena Gutierrez was already cuffed and in an inspection room in Nogales, Arizona, when the Customs and Border Protection (CBP) agent grabbed her purse, opened it, and dumped its contents onto the floor right in front of her. There couldn't be a sharper image of the Bill of Rights rollback we are experiencing in the US borderlands in the post-9/11 era.

Tumbling out of that purse came Gutierrez's life: photos of her kids, business cards, credit cards, and other papers, all now open to the official scrutiny of the Department of Homeland Security. There were also photographs of her husband, Jose Gutierrez Guzman, whom CBP agents beat so badly in 2011 that he suffered permanent brain damage. The supervisory agent, whose name badge on his blue uniform read "Gomez," now began to trample on her life, quite literally, with his black boots.

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"Please stop stepping on the pictures," Shena asked him.

A US citizen, unlike her husband, she had been returning from a 48-hour vigil against Border Patrol violence in Mexico and was wearing a shirt that said "Stop Border Patrol Brutality" when she was aggressively questioned and cuffed at the CBP's "port of entry" in Nogales on that hot day in May. She had no doubt that Gomez was stepping all over the contents of her purse in response to her shirt, the evidence of her activism.

Perhaps what bothered Gomez was the photo silkscreened onto that shirt—of her husband during his hospitalization. It showed the aftermath of a beating he received from CBP agents. His head had a partially caved-in look because doctors had removed part of his skull. Over his chest and arms were bruises from Tasering. One tooth was out of place, and he had two black eyes. Although you couldn't see them in the photo, two heavily armed Homeland Security agents were then guarding his hospital door to prevent the father of two, formerly a sound technician and the lead singer of a popular band in Los Angeles, from escaping—even in his comatose state.

Jose Gutierrez Guzman's has become an ever more common story in an American age of mass expulsions. Although he had grown up in the United States (without papers), he was born in Mexico. After receiving a letter requesting his appearance, he went to the Immigration and Customs Enforcement building in Los Angeles and was promptly arrested and deported. Customs and Border Protection agents later caught him crossing the border in San Luis, Arizona, near Yuma, in an attempt to reunite with his wife and children.

"Stop... stepping... on... the... pictures," Shena insisted.

As she tells the story, Agent Gomez looked at her shirt for a second, then looked up at her and said, "You have that mentality about us. You think we go around abusing." His tone remained faux-friendly, but his boots didn't—and neither did those cuffs another CBP agent had put on her. Forcing her hands behind her back, they cut uncomfortably into her wrists. They would leave deep red circular marks.

On display was a post-9/11 world in which the usual rights meant to protect Americans from unreasonable search and seizure and unwanted, as well as unwarranted, interrogation were up for grabs.

While such constitutionally questionable intrusions into people's privacy have been increasing at border crossings in the post-9/11 years, this type of hardline border policing has also moved inland. In other words, the sort of intrusions that once would have qualified as unconstitutional have moved in startling numbers into the interior of the country.

Imagine the once thin borderline of the American past as an ever-thickening band, now extending 100 miles inland around the United States—along the 2,000-mile southern border, the 4,000-mile northern border, and both coasts—and you will be able to visualize how vast the CBP's jurisdiction has become. This "border" region now covers places where two-thirds of the US population (197.4 million people) live. The ACLU has come to call it a "constitution-free zone." The "border" has by now devoured the full states of Maine and Florida and much of Michigan.

In these vast domains, Homeland Security authorities can institute roving patrols with broad, extra-constitutional powers backed by national security, immigration enforcement, and drug interdiction mandates. There, the Border Patrol can set up traffic checkpoints and fly surveillance drones overhead with high-powered cameras and radar that can track your movements. Within 25 miles of the international boundary, CBP agents can enter a person's private property without a warrant. In these areas, the Homeland Security state is anything but abstract. On any given day, it can stand between you and the grocery store.

"Border Patrol checkpoints and roving patrols are the physical world equivalent of the National Security Agency," says attorney James Lyall of ACLU Arizona puts it. "They involve a massive dragnet and stopping and monitoring of innocent Americans without any suspicion of wrongdoing by increasingly abusive and unaccountable federal government agents."

Before she was so unceremoniously stopped and held, Shena Gutierrez shared the story of her husband at that 48-hour vigil. It was another story of the kind of pervasive abuse reported by people in the 100-mile zone. There were no cameras that night to record how 11 agents "subdued" Jose Gutierrez Guzman, as the CBP put it in its official report on the incident. Its claim: that Jose "struck his head on the ground," a way perhaps of accounting for the hospital's eventual diagnosis of "blunt force trauma."

Considering the extent of Jose's injuries, that CBP report is questionable indeed. Many Border Patrol agents now use the term "tonk"—the sound a flashlight supposedly makes when it bangs against someone's head—as their way of describing border-crossers. Jose was also repeatedly "shot" with an "electronic control device," aka a Taser. He was so badly beaten that, more than three years later, he still suffers seizures.

"Stop stepping on my pictures!" Gutierrez insisted again. But much like the CBP's official complaint process, the words were ignored. The only thing Gomez eventually spat out was, "Are you going to get difficult?"

When Shena Gutierrez offered me a play-by-play account of her long day, including her five-hour detainment at the border, her voice ran a gamut of emotions from desperation to defiance. Perhaps these are the signature emotions of what State Department whistleblower Peter Van Buren has dubbed the "Post-Constitutional Era." We now live in a time when, as he writes, "the government might as well have taken scissors to the original copy of the Constitution stored in the National Archives, then crumpled up the Fourth Amendment and tossed it in the garbage can." The prototype for this new era, with all the potential for abuse it gives the authorities, can be found in that 100-mile zone.
 

A Standing Army

The zone first came into existence thanks to a series of laws passed by Congress in the 1940s and 1950s at a time when the Border Patrol was just an afterthought with a miniscule budget and only 1,100 agents. Today, Customs and Border Protection has more than 60,000 employees and is by far the largest federal law enforcement agency in the country. According to author and constitutional attorney John Whitehead, the Department of Homeland Security (DHS), created in 2002, is efficiently and ruthlessly building "a standing army on American soil."

Long ago, President James Madison warned that "a standing military force, with an overgrown Executive, will not long be safe companions to liberty." With its 240,000 employees and $61 billion budget, the DHS, Whitehead points out, is militarizing police units, stockpiling ammunition, spying on activists, and building detention centers, among many other things. CBP is the uniformed and most visible component of this "standing army." It practically has its own air force and navy, an Office of Air and Marine equipped with 280 sea vessels, 250 aircraft, and 1,200 agents.

On the border, never before have there been so many miles of walls and barriers, or such an array of sophisticated cameras capable of operating at night as well as in the daylight. Motion sensors, radar systems, and cameras mounted on towers, as well as those drones, all feed their information into operational control rooms throughout the borderlands. There, agents can surveil activity over large stretches of territory on sophisticated (and expensive) video walls. This expanding border enforcement regime is now moving into the 100-mile zone.

Such technological capability also involves the warehousing of staggering amounts of personal information in the digital databases that have ushered in the Post-Constitutional Era. "What does all this mean in terms of the Fourth Amendment?" Van Buren asks. "It's simple: the technological and human factors that constrained the gathering and processing of data in the past are fast disappearing."

The border, in the post 9/11 years, has also become a place where military manufacturers, eyeing a market in an "unprecedented boom period," are repurposing their wartime technologies for the Homeland Security mission. This "bring the battlefield to the border" posture has created an unprecedented enforcement, incarceration, and expulsion machine aimed at the foreign-born (or often simply foreign-looking). The sweep is reminiscent of the operation that forced Japanese (a majority of them citizens) into internment camps during World War II, but on a scale never before seen in this country. With it, unsurprisingly, has come a wave of complaints about physical and verbal abuse by Homeland Security agents, as well as tales of inadequate food and medical attention to undocumented immigrants in short-term detention.

The result is a permanent, low-intensity state of exception that makes the expanding borderlands a ripe place to experiment with tearing apart the Constitution, a place where not just undocumented border-crossers, but millions of borderland residents have become the targets of continual surveillance. If you don't see the Border Patrol's ever-expanding forces in places like New York City (although CBP agents are certainly present at its airports and seaports), you can see them pulling people over these days in plenty of other spots in that Constitution-free zone where they hadn't previously had a presence.

They are, for instance, in cities like Rochester, New York, and Erie, Pennsylvania, as well as in Washington State, Vermont, Florida, and at all international airports. Homeland Security officials are scrutinizing people's belongings, including their electronic devices, from sea to shining sea. Just ask Pascal Abidor, an Islamic studies doctoral student whose computer was turned on by CBP agents in Champlain, New York.

When an agent saw that he had a picture of a Hezbollah rally, she asked Abidor, a US citizen, "What is this stuff?" His answer—that he was studying the modern history of the Shiites—meant nothing to her and his computer was seized for 10 days. Between 2008 and 2010, the CBP searched the electronic devices of more than 6,500 people. Like many of us, Abidor keeps everything, even his most private and intimate conversations with his girlfriend, on his computer. Now, it's private no longer.

Despite all this, the message politicians and the media generally offer is that the country needs more agents, new techno-gadgets, and even more walls for our "safety." In that context, President Obama on July 7th asked Congress for an additional $3.7 billion for "border security."

Since last October, in what officials have called a "humanitarian crisis," 52,000 unaccompanied children, mostly from Central America, have been apprehended by Border Patrol agents. News about and photos of some of those children, including toddlers, parentless and incarcerated in warehouses in the Southwest, have led to a flood of articles, many claiming that border security is "strained." A Border Patrol Union representative typically claimed that the border is "more porous than it's ever been." While such claims are ludicrous, all signs point to more money being packed aboard what Whitehead has called a "runaway train."

Make no bones about it, every dollar spent this way works not just to keep others out of this country, but to lock American citizens into a border zone that may soon encompass the whole country. It also fortifies our new domestic "standing military force" and its rollback of the Bill of Rights.

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