Border Security Equals Sovereignty; Congress Impedes DHS Ability to Search and Protect

The Washington Times (Washington, DC), August 14, 2008 | Go to article overview

Border Security Equals Sovereignty; Congress Impedes DHS Ability to Search and Protect


Byline: David B. Rivkin, Jr. and Lee A. Casey, SPECIAL TO THE WASHINGTON TIMES

The war on terror has required a number of compromises between individual liberties and the community's security, prompting a robust public debate. Unfortunately, some of the critics have opposed even the government's more traditional public safety-related activities, as well as the new wartime measures. Examining the contents of laptop computers and other electronic devices carried by international travelers falls well within the government's traditional right to conduct searches - of people, luggage and cargo - at the border. These searches are consistent with well-established legal principles and practices and play an important role in protecting our borders against terrorists and other threats.

Securing the nation's border is, of course, an essential attribute of sovereignty. Federal officials have inspected persons and goods seeking admission into the United States since the earliest days of our republic. These inspections have always had the same fundamental purpose: to facilitate legitimate trade and travel, while upholding U.S. laws and public safety. The courts have ruled on numerous occasions that such special needs searches are fully consistent with the Fourth Amendment's requirements for lawful searches and seizures and do not require a warrant. Such searches include the examination of documents and papers being brought into the United States.

The electronic devices on which those materials are stored enjoy no special immunity. There is no logical distinction between searching a pile of papers at the border and the search of a series of computer files. Indeed, in our digital age, it would be anomalous if customs agents could look at the former but would need to waive a computer - which might contain a cargo container's worth of terrorist materials or contraband - into the United States without a second look. Nor, it should be noted, are document searches uniquely intrusive. Most Americans might find a customs agent's search of their packed underwear far more upsetting.

To date, searches of laptops have been extremely effective. Among other things, they have revealed violent jihadist material, information about weapons, video clips of improvised explosive devices being used against U.S. troops and copious amounts of al Qaeda propaganda. In February 2007, for example, an individual arrived at San Francisco International Airport, seeking admission to the United States. Inspection of his computer revealed violent jihadist materials. Further investigation disclosed that the individual was a target of Hamas recruiting efforts. Laptop searches allowed Department of Homeland Security (DHS) to bring removal proceedings against this individual well before he was able to enter the United States.

Similarly, in September 2006, inspection of a laptop computer carried by a foreign national arriving at Minneapolis-St. Paul International Airport uncovered numerous video clips depicting the explosion of Improvised Explosive Devices (IEDs), pictures of high-ranking al Qaeda figures, and a recording of the individual in question reading his will. …

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