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 U.S. 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
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