The Canadian border: A Constitution-free zone

Drone use, surveillance and now border police all exist outside the law in the post-9/11 world

Topics: TomDispatch, Canadian Border, Homeland Security, constitution, Counterterrorism, , ,

This piece originally appeared on TomDispatch.

Before September 11, 2001, more than half the border crossings between the United States and Canada were left unguarded at night, with only rubber cones separating the two countries. Since then, that 4,000 mile “point of pride,” as Toronto’s Globe and Mail once dubbed it, has increasingly been replaced by a U.S. homeland security lockdown, although it’s possible that, like Egyptian-American Abdallah Matthews, you haven’t noticed.

The first time he experiences this newly hardened U.S.-Canada border, it takes him by surprise. It’s a freezing late December day and Matthews, a lawyer (who asked me to change his name), is on the passenger side of a car as he and three friends cross the Blue Water Bridge from Sarnia, Ontario, to the old industrial town of Port Huron, Michigan. They are returning from the Reviving the Islamic Spirit conference in Toronto, chatting and happy to be almost home when the car pulls up to the booth, where a blue-uniformed U.S. Customs and Border Protection (CBP) agent stands. The 60,000-strong CBP is the border enforcement arm of the Department of Homeland Security and includes both customs and U.S. Border Patrol agents. What is about to happen is the furthest thing from Matthews’s mind. He’s from Port Huron and has crossed this border “a million times before.”

After scanning their passports and looking at a computer screen in the booth, the agent says to the driver, as Matthews tells the story:

“Sir, turn off the vehicle, hand me the key, and step out of the car.”

He hears the snap of handcuffs going around his friend’s wrists. Disoriented, he turns around and sees uniformed men kneeling behind their car, firearms drawn.

“To my disbelief, situated behind us are agents, pointing their guns.”

The CBP officer asks Matthews and the remaining passengers to get out of the car and escorts them to a waiting room. Thirty minutes later, he, too, is handcuffed and in a cell. Forty-five minutes after that another homeland security agent brings him into a room with no chairs. The agent tells him that he can sit down, but all he sees is a countertop. “Can I just stand?” he asks.

And he does so for what seems like an eternity with the door wide open, attempting to smile at the agents who pass by. “I’m trying to be nice,” is how he put it.

Finally, in a third room, the interrogation begins. Although they question Matthews about his religious beliefs and various Islamic issues, the two agents are “nice.” They ask him: Where’d you go? What kind of law do you practice? He tells them that a former law professor was presenting a paper at the annual conference, whose purpose is to revive “Islamic traditions of education, tolerance, and introspection.” They ask if he’s received military training abroad. This, he tells me, “stood out as one of their more bizarre questions.” When the CBP lets him and his friends go, he still thinks it was a mistake.

However, Lena Masri of the Council of American Islamic Relations-Michigan (CAIR-MI) reports that Matthews’s experience is becoming “chillingly” commonplace for Michigan’s Arab and Muslim community at border crossings. In 2012, CAIR-MI was receiving five to seven complaints about similar stops per week. The detainees are all Arab, all male, all questioned at length. They are asked about religion, if they spend time at the mosque, and who their Imam is.

According to CAIR-MI accounts, CBP agents repeatedly handcuff these border-crossers, often brandish weapons, conduct invasive, often sexually humiliating body searches, and detain people for from two to 12 hours. Because of this, some of the detainees have lost job opportunities or jobs, or given up on educational opportunities in Canada. Many are now afraid to cross the border to see their families who live in Canada. (CAIR-MI has filed a lawsuit against the CBP and other governmental agencies.)

Months later, thinking there is no way this can happen again, Matthews travels to Canada and crosses the border, this time alone, on the Blue Water Bridge to Port Huron. Matthews still hadn’t grasped the seismic changes in Washington’s attitude toward our northern border since 9/11. Port Huron, his small hometown, where a protest group, Students for a Democratic Society, first famously declared themselves against racism and alienation in 1962, is now part of the “frontline” in defense of the “homeland.” As a result, Matthews finds himself a casualty of a new war, one that its architects and proponents see as a permanent bulwark not only against non-citizens generally, but also people like Matthews from “undesirable” ethno-religious groups or communities in the United States.

While a militarized enforcement regime has long existed in the U.S-Mexico borderlands, its far more intense post-9/11 version is also proving geographically expansive. Now, the entire U.S. perimeter has become part of a Fortress USA mentality and a lockdown reality. Unlike on our southern border, there is still no wall to our north on what was once dubbed the “longest undefended border in the world.” But don’t let that fool you. The U.S.-Canadian border is increasingly a national security hotspot watched over by drones, surveillance towers, and agents of the Department of Homeland Security.

The Canadian Threat

Bert Tussing, U.S. Army War College Homeland Defense and Security Director, realizes that when people think of border security, what immediately comes to mind is the U.S.-Mexico border. After all, he is speaking in El Paso, Texas, where in the early 1990s the massive transformation and expansion of the border enforcement apparatus was born. Operation Blockade (later renamed Operation Hold-the-Line) became the Clinton administration’s blueprint for the walls, double-fencing, cameras, sensors, stadium-lighting, and concentration of Border Patrol agents now seen in urbanized areas — and some rural ones as well — from Brownsville, Texas, to San Diego, California. Tussing believes that this sort of intense surveillance, which has literally deformed communities throughout the southwest, should be brought to the northern border as well.

A former Marine with close-cropped brown hair, Tussing has a Napoleonic stature and despises being stuck behind a podium. “I kind of like moving around,” he quips before starting “The Changing Role of the Military in Border Security Operations,” his talk at last October’s Border Management Conference and Technology Expo.

Perhaps Tussing realizes that his audience holds a new breed of border-security entrepreneur when his initial Army-Marine joke falls flat. Behind the small audience are booths from 74 companies selling their border-security wares. These nomadic malls of the surveillance state are popping up in ever more places each year.

Hanging from the high ceiling is a white surveillance aerostat made by an Israeli company. Latched onto the bottom of this billowing balloon are cameras that, even 150 feet away, can zoom in on the comments I’m scrawling in my notebook. Nearby sits a mannequin in a beige body suit, equipped with a gas mask. It’s all part of the equipment and technology that the developing industry has in mind for our southern border, and increasingly the northern one as well.

Tussing homes in on a 2010 statistic: 59,000 people (“illegals if you will”) tried to enter the United States from countries “other than Mexico, the euphemistic OTMs.” Six hundred and sixty-three of these “OTMs” were from countries Tussing calls “special-interest nations” such as Pakistan, Afghanistan, Libya, and Somalia, and also from countries the U.S. has identified as state-sponsors of terrorism like Cuba, Iran, Sudan, and Syria.

Next, he turns to the U.S-Canada divide, mentioning the 1999 case of Ahmed Ressam who would have become “the millennium bomber,” if not for an astute U.S. Customs agent in Washington state. Here, as Tussing sees it, is the crux of the problem: “We found over time that he was able to do what he was to do because of the comparatively liberal immigration and asylum laws that exist today in Canada, which allowed him a safe haven. Which allowed him a planning area. Which allowed him an opportunity to build bombs. Which allowed him an opportunity to arrange his logistics.” He pauses. “This is not to say that Canada’s laws are wrong, but they are different from ours.”

A Government Accountablity Office report, he adds, claims that “the risk of terrorist activity is high along the northern border.” Of that 4,000-mile border between the two countries, he adds, “only 32 of those miles are categorized as what we say are acceptable levels of control.”

As what Tussing calls the “coup de grâce” to his argument for reinforcements of every sort along that border, he quotes Alan Bersin, former director of Customs and Border Protection: “In terms of the terrorist threat, it’s more commonly accepted that the most significant threat comes from the north,” not the south.

A Constitution-Free Zone

In 2012, the U.S. government spent more on the Homeland Security agencies responsible for border security than all of its other principal federal law enforcement agencies combined. The $18 billion allocated to Customs and Border Protection and Immigration and Customs Enforcement significantly exceeds the $14.4 billion that makes up the combined budgets of the FBI, the Drug Enforcement Administration, the Secret Service, the U.S. Marshal Service, and the Bureau of Alcohol, Tobacco, Firearms, and Explosives. In the years since 9/11, more than $100 billion has been spent on border security. Much of that went to the southern border, but now an ever larger chunk is heading north.

On that northern border, things have come a long way since North Dakota Senator Byron Dorgan in 2001 held up an orange cone and said, “This is America’s security at our border crossing… America can’t effectively combat terrorism if it doesn’t control its borders.”

Now Predator B drones, sometimes in the air for 20 hours at a stretch, are doing surveillance work from Grand Forks, North Dakota, to Spokane, Washington. Expensive surveillance towers equipped with night-vision cameras and sophisticated radar have been erected along the St. Clair and Niagara Rivers in Michigan and western New York state. Homeland Security built a $30 million border security “war room” at Michigan’s Selfridge Air National Guard Base, which, with its “video wall,” is worthy of a Hollywood action flick. This “gold standard” for border protection, as the CBP dubs it, is now one of many places where agents continuously observe those rivers of the north. As at Selfridge, so many resources and so much money has been poured into the frontlines of “homeland security,” and just upstream from cash-starved, post-industrial Detroit, the poorest city of its size in the United States.

In addition, the CBP’s Office of Air and Marine — essentially Homeland Security’s air force and navy — has established eight U.S. bases along the border from Plattsburgh, New York, to Bellingham, Washington. While such bases are commonplace on the southern border, they are new on the Canadian frontier. In addition, new state-of-the art Border Patrol stations are popping up in places like Pembina, North Dakota (at the cost of $13 million), International Falls, Minnesota ($6.8 million), and other places. This advance of the homeland security state in the north, funded and supported by Congress, seems both uncontroversial and unstoppable.

Don’t think that the eternal bolstering of “border security” is just a matter of fortifying the boundary line, either. Last November, the CBP ordered an additional 14 unmanned aerial vehicles. (They are, however, still waiting for Congress to appropriate the funding for this five-year plan.) With this doubling of its fleet, there will undoubtedly be more surveillance drones flying over major U.S. urban areas like Detroit, Buffalo, Syracuse, Bangor, and Seattle, places the ACLU has classified as in a “Constitution-free zone.”

That zone — up to 100 miles from any external U.S. border — is the area that the Supreme Court has deemed a “reasonable distance” in which to engage in border security operations, including warrantless searches. As in the Southwest, expect more interior checkpoints where federal agents will ask people about their citizenship, as they did to Vermont Senator Patrick Leahy in 2008. In the zone, you have the developing blueprint for a country not only in perpetual lockdown, but also under increasing surveillance. According to the ACLU, if you were to include the southern border, the northern border, and coastal areas in this zone, it would contain 200 million people, a potential “border” jurisdiction encompassing two-thirds of the U.S. population.

It’s October 2007 when I get my first glimpse of this developing Constitution-free zone in action at a Greyhound bus station in Buffalo, New York. I’m with Miguel Angel Vasquez de la Rosa, a Mexican lawyer who is brown-skinned and speaks only Spanish. As we enter the station, we spot two beefy Border Patrol agents in their dark-green uniforms patrolling the waiting area.

I have to blink to make sure I’m not seeing things, to remember where I am. I’m originally from this area, but have lived for years along the U.S.-Mexican border where I’ve grown used to seeing the “men in green.” I can’t remember ever seeing them here.

Before 9/11, Border Patrol agents on the southern border used to joke that they went north to “go fishing.” Not anymore. The 2001 USA Patriot Act mandated a 300% increase in Border Patrol personnel on the northern border, as well as the emplacement of more surveillance technology there. Further legislation in 2004 required that 20% of the agency’s new recruits be stationed on the Canadian divide.

The number of U.S. Border Patrol agents on the northern border went from 340 in 2001 to 1,008 in 2005 to 2,263 in 2010. Now, the number is approaching 3,000. That’s still small compared to the almost 19,000 on the southern border, but significant once you add in the “force multipliers,” since Border Patrol works ever more closely with local police and other agencies. For example, according to immigration lawyer Jose Perez, New York State troopers call the Border Patrol from Interstate-90 outside of Syracuse about a suspected undocumented person about 10 times a day on average. “And we aren’t even in Arizona.”

On that day in Buffalo, the two agents made a beeline for Miguel to check his visa. A moment later, the hulking agents are standing over another brown-skinned man who is rifling through a blue duffle bag, desperately searching for his documents. Not long after, handcuffed, he is walked to the ticket counter with the agents on either side. Somehow, cuffed, the agents expect him to retrieve his ticket from the bag, now on the counter. There are so many people watching that it seems like a ritual of humiliation.

Since 2007, this sort of moment has become ever more usual across the northern border region in bus and train stations, as “homeland security” gains ever more traction and an ever wider definition. The Border Patrol are, for instance, staking out Latino community centers in Detroit, and working closely with the police on the Olympic peninsula in Washington state, leading to a much wider enforcement dragnet, which looks an awful lot like round-ups of the usual suspects.

After 9/11, the Border Patrol’s number one mission became stopping terrorists and weapons of mass destruction from coming into the country between the ports of entry. The Border Patrol, however, is “an agency that doesn’t have limitations,” says Joanne Macri, director of the Criminal Defense Immigration Project of the New York State Defender Association. “With police officers, people have more due process protection.” Since 9/11, she adds, they have become “the national security police.”

And from what we know of their arrest records, it’s possible to grasp their definition of national security. Just in Rochester, New York, between 2005 and 2009, the CBP classified 2,776 arrests during what it terms “transportation raids” by skin complexion. The results: 71.2% of medium complexion and 12.9% black. Only 0.9% of their arrests were of “fair” complexion. And agents have had incentives to increase the numbers of people they sweep up, including Home Depot gift certificates, cash bonuses, and vacation time.

Macri tells me that it is now ever more common for armed national security police to pull people “who don’t belong” off buses and trains in the name of national security. In 2011, according to Immigration and Customs Enforcement director John Morton, there were more than 47,000 deportations of undocumented people along the northern border.

Too Close to Home

The next time Abdallah Matthews crosses the international border, a familiar face asks him the normal questions: Where did you go in Canada? What was the purpose of your trip? Matthews is already in the same CBP waiting area, has already been handcuffed, and can’t believe it’s happening again.

The CBP agent suddenly stops. “Do you remember me?”

Matthews peers at him, and finally says, “Yes, I played soccer with you.” They haven’t seen each other since high school. They briefly reminisce, two men who grew up together along the St. Clair River before all those expensive surveillance towers with infrared cameras and radar went up. Although Matthews and the CBP agent were once friendly, although they lived in the same small town, there is now a boundary between them. Matthews struggles against this divide. He pleads: “You know who I am. I grew up here. I’ve been over this border a million times.”

This is, of course, only one of thousands of related stories happening along U.S. borders, north and south, in a universe in which, as anthropologist Josiah Heyman puts it, there are increasingly only two kinds of people: “the watchers and the watched.” And keep in mind that, with only “32 miles” under operational control, this is just the beginning. The U.S. border enforcement apparatus is only starting its migration north.

Matthews’s former high-school acquaintance guides him to the now-familiar room with the counter where three interrogators are waiting for him. They tell him to spread his legs. Then they order him to take off his shoes. It’s hard to take them off, however, when your hands are cuffed behind your back. The two interrogators in front are already shouting questions at him. (“What were you doing in Canada?”) The one behind him kicks his shoes. Hard. Then, after Matthews finally manages to get them off, the agent searches under his waistband.

When they are done, Matthews asks the agents what they would do if he were to circle around, reenter Canada, and cross the border again. The agents assure him that they would have to do the same exact thing — handcuff, detain, and interrogate him as if his previous times had never happened.

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