What seems like almost a tabloid style article -- You Won't Believe What Happened Next!-- is in fact a troublesome look into a little known part of the war on terror: our Constitution-free border zones.
Ashley Cervantes, a then 18-year-old American citizen, was stopped at the Mexico border and accused by Customs and Border Protection (CBP) of smuggling drugs.
Cervantes was locked into a room for several hours, handcuffed to a chair, while several dogs were brought in to sniff at her. A request to call her mother was denied. No drugs.
CBP then proceeded to a cavity search. She was also made to squat pantless so female investigators could visually inspect her privates. Still no drugs.
So Customs and Border Protection took her to a local hospital against her will, in handcuffs. No warrant, no consent. Instead, a Customs and Border Protection agent signed a "Treatment Authorization Request" as she was considered an alleged "potential internal carrier of foreign substance." That form requested an X-ray. After the X-ray showed no drugs, doctors performed another vaginal and anal search. No drugs. She was finally released after seven hours of humiliation and given a bill for $575 for "medical treatment."
Cervantes now has a civil rights lawsuit pending against the government. "[I] had never before been to a gynecologist and, for the remainder of my life, will always remember that my first pelvic and rectal exams were done under the most inhumane circumstances imaginable to a U.S. citizen at a hospital on U.S. soil," she charges.
Most people believe they are in the United States as soon as they step off an international flight, or as long as they are waiting for their outbound flight, or as they enter a CBP office on the border, as with Cervantes in the case above, and are thus fully covered by the Bill of Rights.
Wrong. And the irony that a person can be separated from his/her Constitutional rights by a border marked by a pane of glass is not to be missed. The truth has, in the twenty-first century, become infinitely more complicated as long-standing practices are manipulated to serve the expanding desires of the national security state.
Over the years, recognizing that certain situations could render Fourth Amendment requirements impractical or against the public interest, the Supreme Court crafted various exceptions. One was the "border search." The idea was that the United States should be able to protect itself by stopping and examining people entering or leaving the country. As a result, routine border searches without warrants are constitutionally "reasonable" simply by virtue of where they take place. It's a concept with a long history, enumerated by the First Congress in 1789.
What Border, 2016 Edition?
Here's the twist in the present era: The definition of "border" has been changed. Upon arriving in the United States from abroad, you are not legally present in the country until allowed to enter by Department of Homeland Security (DHS) officials. You know, the guys who look into your luggage and stamp your passport. Until that moment, you exist in a legal void where the protections of the Bill of Rights and the laws of the United States do not apply. This concept also predates Post-Constitutional America and the DHS. Remember the sorting process at Ellis Island in the late nineteenth and early twentieth centuries? No lawyers allowed there. That's what happened to Cervantes.
What once were modest exceptions in Constitutional America morphed into a vast "Constitution-free zone." The "border" is now a strip of land circling the country and extending 100 miles inland that includes two-thirds of the U.S. population. In this vast region, Customs and Border Protection (CBP) can and do conduct warrantless searches.