ACLU: 2/3 of US population lives in “Constitution-free” zone

By Jon Stokes | Published: October 23, 2008 – 09:45PM CT

Longtime Ars readers know that I’ve had my own problems in the “Constitution-free zone” that exists in US airports, but an aggressive new ACLU campaign highlights a fact of which I was previously unaware: the Constitution-free zone that exists a US borders and airports actually extends 100 air miles inland and encompasses two-thirds of the country’s population. The US Border Patrol can set up checkpoints anywhere in this region and question citizens.

The Fourth Amendment to the Constitution contains a border-related exception to unreasonable search and seizure laws, permitting searches at border checkpoints that wouldn’t be permitted elsewhere. But federal statute 8 CFR 287.1 (a)(1-3) defines the border zone for enforcement purposes as encompassing an area within 100 miles of the actual border, with the possibility of extending it further under certain circumstances. This means that the US Border Patrol could conceivably set up random checkpoints asking travelers for a passport in places like Columbus, Ohio; Houston; or anywhere in the state of Florida. And, in fact, it appears that it has been doing exactly this.

The ACLU’s map of the border zone

Papers, please

In 2003, the Seattle Times reported on random “spot checks” of cars and luggage that border patrol agents were performing on US citizens who were taking the ferry between Washington State and the San Juan islands. Because most of the passengers on these ferries had not actually crossed an international border, the ACLU advised them at the time not to answer any questions asked of them by federal agents.

In the intervening years, the ACLU has been collecting other reports of such inland “border” checkpoints, and has built its new “Constitution-Free Zone” campaign around them. Unfortunately for the ACLU, few of the folks who have been subject to search at such checkpoints have actually come forward with complaints, but the ones who did speak up have compelling and troubling stories.

Take the story of Vince Peppard from San Diego, who crossed the border to buy tiles at a discount store in Mexico. Upon crossing back into the US, he was subject to the usual check at the border, but on driving further inland he was stopped a second checkpoint, where agents asked to search his car.

Peppard, a member of the ACLU, refused the search, at which point he was questioned repeatedly, and eventually escorted from his car while the agents searched it. Segments of Peppard’s account of the incident, which the ACLU has posted in video form on their site, would almost be funny if the issue weren’t so serious.

“He starts looking at the passport and the driver’s license,” says Peppard, “and he goes to my wife, ‘Where were you born?’ because she has an accent, but she’s a US citizen. And so she says, ‘I was born in Syria,’ and he goes, ‘Ah! A Syrian!’ like he’d hit the jackpot or something.”

Peppard then goes a little overboard in expressing worry that he may be stopped and asked for his passport at Home Depot or in other random locations, but he finishes off the clip with a concern that may not be so far-fetched. Specifically, Peppard worries that, because he has talked to the ACLU and has filed a complaint with the Border Patrol, he may be singled out for further harassment at border checkpoints.

Ultimately, one wonders just how far the Feds will push this internal checkpoint idea in a non-emergency situation; given the likely reaction to citizens being asked to show papers on a mass scale, it seems unlikely that the government will truly install checkpoints north of Columbus and begin screening in large numbers. But vigilance, as the saying goes, is the price of freedom, which is why the ACLU and its allies intend to challenge the practice before we have a chance to find out.