The U.S. Constitution contains many protections of an individual’s human rights and “civil liberties,” as they are often called. But what happens at the border? Is it correct to say that our rights don’t exist at the border, or that they are diminished? If a policeman can’t randomly search me or my belongings in my home or while walking down the street, why can Customs and Immigration officers do that? A recent decision by a U.S. court helps explain these issues.

In December of 2004, Toronto hosted a large “Reviving Islamic Spirit” conference, attended by thousands of individuals. Many U.S. citizens and U.S. residents travelled to Toronto to attend the conference. On the trip back to their homes in the U.S., attendees were surprised to be referred into “secondary inspection” at the border to be questioned further by officers of U.S. Customs and Border Protection (CBP), a division of the U.S. Department of Homeland Security (DHS). Most individuals were photographed, fingerprinted and interrogated in a process that in some cases lasted up to six hours. The incidents drew the attention of the American Civil Liberties Union and other advocacy groups, who acted on behalf of several individuals to file a lawsuit against the DHS and CBP in the U.S. District Court in Buffalo. The lawsuit sought a declaration that the conduct of the CBP violated the rights of the individuals returning to the United States, and it further sought an order from the court barring the CBP from repeating the same conduct at as similar December 2005 conference in Toronto.

The federal judge accepted the factual background without the need for additional evidentiary proceedings, and ruled in favour of the U.S. government. Although the judge sympathized with the plight of the returning residents, he concluded that the conduct of the DHS and the CBP officers was perfectly lawful and did not violate any Constitutional rights.

Inspections at the border operate at three levels. Everyone making a lawful entry undergoes primary inspection, where a person may have to present documents and answer a few questions about the nature of the entry to the U.S. For virtually all cases, this is the only inspection that they undergo, and the person is promptly admitted to the U.S. Sometimes, more time is needed to ask questions, or perhaps an entry document must be issued by the CBP. Persons in those situations are referred to secondary inspection for further handling. Secondary inspection can consist of no more than a few additional questions, or it can be a more rigorous review including searching of the vehicle and the person’s belongings, and interrogation. Sometimes photographs or fingerprints are taken to verify identity and determine if the person is wanted with respect to any criminal or national security matter. A third level of inspection involves invasive searching of the person’s body such as X-rays, strip searches and “body cavity” searches.

A reading of a judicial decision would indicate that it is improper to view the matter as one of losing one’s rights, or having fewer rights, at the border. Constitutional protections apply everywhere in the United States, but there is always a balancing of competing interests. The issue is therefore not whether a person had rights at the border, but whether the conduct of the government at the border was permissible after balancing the reasonable national security interests of the government against the right of individuals to be free from unreasonable searches, invasions of privacy and interference with their expression of religion.

The court upheld the long-standing legal principal that national security is an essential government interest, and the border is the place where that interest is most prominent. The balancing of interests is qualitatively different at the international border than within the U.S., and courts have recognized the broad authority of border personnel to conduct routine primary and secondary inspection procedures without establishing “probable cause” or obtaining a search warrant. In this case, the DHS had obtained prior intelligence information that individuals with known ties to terrorism would attend the conference. The nature of such ties and the identities of the individuals have never been disclosed, and it is clear that none of the returning U.S. citizens were individually suspected of having terrorist ties. Still, the court found that the DHS acted reasonably in establishing a special initiative to determine during primary inspection whether a person had attended the conference, and then referring them into secondary inspection for further questioning. The court determined that the DHS was not targeting any specific religious or cultural group, and that all attendees, regardless of age, sex, religion or nationality, would have been treated the same.

The court further pointed out that non-routine intrusive or invasive investigative techniques such as strip searches, would have required a “reasonable suspicion” with respect to the particular individual, and that no such activity had occurred.

The decision confirms the government’s power to control entry to the United States and confirms that individuals, even U.S. citizens, entering the United States should have a reasonable expectation of having to prove identity and citizenship, and to explain the reasons for their stay outside the U.S. and their entry to the U.S. The CBP inspector has full authority to conduct routine searches of vehicles and belongings, and to require documentary evidence, where appropriate, to back up statements made by the individual.

– Daniel Joyce is a partner with the Buffalo N.Y. law firm Jaeckle Fleischmann & Mugel LLP. He can be reached at (716) 843-3946.