Military District of San Bernardino County: ACLU Challenges Border Patrol's Searches

2008-12-22

ACLU Challenges Border Patrol's Searches

SEATTLE -- The note from U.S. Attorney Jeff Sullivan to the U.S. Border Patrol was short and to the point: Stop sending petty marijuana cases to his office.

"It is our long-standing policy to use limited federal resources to pursue the sophisticated criminal organizations who smuggle millions of dollars of drugs, guns and other contraband across our borders," Sullivan wrote in November.

Sullivan's note is one in a string of flare-ups as the Border Patrol expanded its influence and manpower here in recent months. The marijuana busts had come from inland road blocks on state highways.

Sheriff's offices, farmers, and a U.S. Congressman have all made their opinion about the patrol's increased presence known, and not all of it has been friendly.

The clashes cast light on the expanded power of the agency along the country's northern border.

More than 1,100 agents have been added to the Canadian border since Sept. 11, 2001, four times its presence before the terrorist attacks. Hundreds more agents are to be hired next year.

Agents can set up road blocks up to 100 miles from the border, board passenger buses, and patrol transportation hubs that are not near the border. Elsewhere, the Border Patrol, which is part of the U.S. Department of Homeland Security, has set up road blocks in other northern states, including Vermont, New York and Maine.

This authority, relatively new to the people of Washington, has stirred controversy.

"It's the newness and the heightened presence of the Border Patrol that has brought this issue to the forefront," said John Bates, the patrol's chief for the western half of Washington. "We've been utilizing checkpoints for more than 75 years. Obviously when you use a new tactic in the border, people are going to have questions, and rightfully so."

Bates wants people to speak out if agents are rude at the checkpoints, one of complaints he has heard. But the checkpoints aren't going away, said Bates, who calls them an integral part of the agency's security strategy.

Advocates say intrusive operations - such as boarding passenger buses - are threatening civil liberties.

The American Civil Liberties Union has led the challenge of Border Patrol's powers. They call the patrol's 100-mile belt of jurisdiction a "Constitution-Free Zone" occupied by two-thirds of the country's population.

"Our concern is not just what they're doing now. But what this expanded interpretation of what they can do, can expand into," said Shankar Narayan, legislative director for Washington's ACLU chapter. "They can eventually claim a range of authority away from the border, who can say where that stops?"

Narayan said the ACLU expects to file a lawsuit challenging the road blocks when it finds the right case.

There are no checkpoints in largely rural eastern Washington and none are planned, though spokeswoman Danielle Suarez said the patrol reserves the right to set them up. Suarez said that eastern Washington's rugged terrain calls for different tactics.

The last checkpoint operated in western Washington happened in October, although border agents are now patrolling bus terminals.

In Vermont, the Border Patrol reinstated a traffic checkpoint 97 miles from the Canadian border on an interstate in 2007. The checkpoint has drawn criticism from U.S. Sen. Patrick Leahy, who questioned its effectiveness. The Border Patrol, however, also provides manpower and technical aid to local police in the region.

In Washington, small protests have also taken place in the towns of Port Angeles and Forks, two towns on the Olympic Peninsula that have seen an increased presence of border agents. The peninsula can only be reached from Canada by ferry.

In 1999, Ahmed Ressam, an Algerian national who was convicted on multiple counts for plotting to bomb Los Angeles International Airport around Jan. 1, 2000, was caught by custom agents with explosives in the trunk of his car when he drove off a ferry.

"Canada does have lax polices, there are dangerous people who have gotten into Canada," said Ira Mehlman of the Washington, D.C.-based Federation for American Immigration Reform. "They have these checkpoints in close proximity to the southern border, and there's no reason why they can't have them in the northern border."

Democrat U.S. Rep. Norm Dicks has criticized agents for being too gruff, and said the agency should focus on protecting the coastlines.

Farmers say Border Patrol's crackdown on illegal immigration is scaring away workers.

"We're going to become a military zone in effect, where the federal government has dozens of police on the street, stopping people at will," said Eric Chester of Port Townsend, Wash.

Bates argues that border agents are trying to protect a challenging, porous and busy border. Cocaine being smuggled north from Mexico, and marijuana from Canada are some of the drugs traffickers carry in this corridor, Bates said.

Bates also said the agency will likely refer petty drug cases to local prosecutors, instead of Sullivan's office.

The patrol also opposes the use of the term "road blocks," saying that "checkpoints are not designed to block the entry of vehicles into an area," spokesman Michael Bermudez said.

The checkpoints, Bates says, provide a last line of defense.

"There's a learning curve for us with the community, we need to keep those lines of communications open," Bate said. "Some of those questions will keep coming up, until people are used to the Border Patrol."