The send-up from the White House is that Donald Trump’s recent immigration executive order, better known as the travel ban, is about securing the United States against terrorism. By framing the narrative in this way, many Americans may well believe that U.S. citizens, by virtue of their iron-clad citizenship, are exempt from any detrimental repercussions from this type of policy making. The truth is that in taking political rhetoric and turning it into hastily crafted, unilateral official policy of the United States, Trump has created not just constitutional threats to non-citizens and visitors, but he has essentially eroded the constitutional protections of U.S. citizens in the same fell swoop. In this article, I’d like to examine the specific dangers to U.S. citizens.
The logic among Trump supporters runs something like this: inconveniencing a handful of foreign visitors or immigrants is simply the price we must pay for security. The subtext is that foreigners don’t have the same rights under the constitution as U.S. citizens do. Consistently, the courts have disagreed with this assertion but that doesn’t change the widespread belief that immigrants, refugees and other non-citizens shouldn’t enjoy the same constitutional protections afforded to citizens.
So, what happens when a U.S. citizen is similarly inconvenienced as a result of this aggressive stance on immigration procedures? Again, supporters argue that this is a small price to pay for the security it provides. Every day, hundreds, if not thousands, are inconvenienced at airport security checkpoints in the name of “enhanced security measures”. And when inconvenience transforms into clear violations of the U.S. Constitution, then what? Will conservatives and libertarians still believe that the price of security includes violating the rights and protections afforded U.S. citizens? Will many still assert that national security outweighs outright violations to an individual’s right to privacy and their constitutional protection against unreasonable searches?
Here’s the thing: Donald Trump’s travel ban is a magician’s hat trick — he has you looking over there (to where our fears of terrorism reside) while the real action is happening over here, smack dab in the middle of the most sacred protections enshrined in the constitution.
Let’s set aside for the moment any argument for/against the notion that foreigners should be afforded the same basic human rights of U.S. citizens and focus on your fundamental rights as a U.S. citizen, specifically the right to privacy, the right to not be subjected to unreasonable searches/seizures and the right to not be subjected to self-incrimination. These are among the most fundamental rights U.S. citizens cherish.
Last month, a U.S. citizen — a man who was born in the United States and is currently working for the federal government — was detained by border agents at a Houston airport. He was not allowed to leave the airport until he gave the U.S. border agents the password to his telephone so that they could look through it.
This happened on January 30, 2017 to U.S.-born NASA scientist Sidd Bikkannavar. He was returning from Santiago, Chile when he was detained at the airport by U.S. Immigration and Customs agents. Bikkannavar was held by the border agents and told that he would not be released until he gave the agents the PIN number to his telephone so they could unlock it and download/copy his data from the device.
Bikkannavar, besides being a U.S. citizen by birth and travelling on a U.S. passport, informed the agents that the phone belonged to NASA, a federal agency, and that it may have sensitive data on it. The border agents, nonetheless, would not release him until he allowed them to search his phone.
Forget the possible violations to national security contained in NASA’s data and the obvious violations of the U.S. Constitution and let’s focus on the underlining problem: the lack of procedural process. The lack of procedural process is the fundamental problem with the immigration system in the United States. Donald Trump and his supporters purport that no one has a problem with immigrants as long as they “follow the rules.” The Bikkannavar case proves that the “rules” are impossible to follow because there are no actual rules.
As what happened to Sidd Bikkannavar illustrates, a mishmash of political rhetoric-driven “rules” has vested a small group of individuals — border patrol agents — with the authority to make unilateral determinations of who is allowed into the country as well as what intrusive measures can be used against them without the basic right to due process.
Once you enter the immigration checkpoint, whether at an airport, a sea port or an international bridge, you are at the complete mercy of a small group of people and sometimes even on just one individual’s discretion and personal judgement. You have no right to speak with an attorney because it is clearly spelled out in the rules and policies at the ports of entry. You have no right to refuse to answer questions or to refuse to grant border agents access to your belongings. In other words, your constitutional rights are suspended until the agent or agents deem you acceptable to enter the country.
In the case of Sidd Bikkannavar, the ability to seek redress through the judiciary is available to him by virtue of his U.S. citizenship. Bikkannavar can tell his story in the full light of day and has a formidable federal agency, NASA, behind him, two factors which give him a way to both expose and confront the problems with Trump’s incoherent travel ban. Most importantly, Bikkannavar has access to the U.S. court system. Foreigners, for the most part, do not have that same right.
If a capricious border agent decides to take away an immigrant’s green card, or a foreigner’s valid U.S. visa that grants him entry into the country, there is little to nothing that the traveler can do. There is no due process at the border. It is virtually impossible to sue and subsequently recover the ability to live in the United States for foreigners who have run afoul of a mercurial border agent, even if and when they have followed all the “rules”.
Many argue that foreigners should not enjoy the same rights as U.S. citizens or rationalize that “inconveniencing” a handful of visitors when they arrive at the ports is a fair trade in the name of national security. But what of the Sidd Bikkennavar’s of the world? Was his situation a simple “inconvenience” or was it another step in dismantling the civil liberties of all Americans? Sadly, Bikkannavar is only one example of a fractured and capricious immigration system which is using immigrants for political expediency.
On December 8, 2012, a female 54-year old U.S. citizen who was returning from a trip to México was detained by border patrol agents at the El Paso Port of Entry after a dog alerted to possible narcotics on her person. This woman was subjected to six hours of what can only be described as physical and psychological torture at the border checkpoint. She was strip-searched, was observed having a bowel movement, had a CT scan performed against her will and was subjected to an involuntary cavity search at a local hospital under the direct orders and supervision of U.S. border agents. At no time during her detention was a judge consulted or a court order secured in order to proceed with the invasive procedures. All of it was done under the authority of a small group of individuals without judicial oversight or due process.
Four years later, in 2016, this woman was awarded $475,000 in damages to be paid by U.S. Customs and Border Protection and $1.1 million to be paid by University Medical Center, the local hospital where she was taken for the unnecessary and involuntary medical procedure she was subjected to. More importantly, no illicit contraband was found on the victim. (Click here to read the court document)
We know about this incident because the victim is a U.S. citizen. But what about foreign victims who have little or no recourse to either tell their stories or seek justice? How can anyone argue in favor of unfettered administrative authority at U.S. ports of entry that casts such a wide and troubling shadow over the civil liberties of every single human being who sets foot on U.S. soil, whether native-born citizen, naturalized citizen, temporary or permanent legal resident, visa-holding immigrant, undocumented alien or refugee? How is this affront to the very essence of the constitution — and the remarkable, enduring principles of democracy it sustains — acceptable to anyone?