Two Out of Every Three Americans Now Live in a Constitution-Free Zone

by on July 16, 2014 · 12 comments

in American Empire, California, Civil Rights

Border Patrol horsesThanks to the militarization and expansion of the “border” region, 197 million Americans now live within the jurisdiction of US Customs and Border Patrol.

By Todd Miller / The Nation / July 15, 2014

Shena Gutierrez was already cuffed and in an inspection room in Nogales, Arizona, when the Customs and Border Protection (CBP) agent grabbed her purse, opened it, and dumped its contents onto the floor right in front of her. There couldn’t be a sharper image of the Bill of Rights rollback we are experiencing in the US borderlands in the post-9/11 era.

Tumbling out of that purse came Gutierrez’s life: photos of her kids, business cards, credit cards and other papers, all now open to the official scrutiny of the Department of Homeland Security. There were also photographs of her husband, Jose Gutierrez Guzman, whom CBP agents beat so badly in 2011 that he suffered permanent brain damage. The supervisory agent, whose name badge on his blue uniform read “Gomez,” now began to trample on her life, quite literally, with his black boots.

“Please stop stepping on the pictures,” Shena asked him.

A US citizen, unlike her husband, she had been returning from a forty-eight-hour vigil against Border Patrol violence in Mexico and was wearing a shirt that said “Stop Border Patrol Brutality” when she was aggressively questioned and cuffed at the CBP’s “port of entry” in Nogales on that hot day in May. She had no doubt that Gomez was stepping all over the contents of her purse in response to her shirt, the evidence of her activism.

Perhaps what bothered Gomez was the photo silkscreened onto that shirt—of her husband during his hospitalization. It showed the aftermath of a beating he received from CBP agents. His head had a partially caved-in look because doctors had removed part of his skull. Over his chest and arms were bruises from Tasering. One tooth was out of place, and he had two black eyes. Although you couldn’t see them in the photo, two heavily armed Homeland Security agents were then guarding his hospital door to prevent the father of two, formerly a sound technician and the lead singer of a popular band in Los Angeles, from escaping—even in his comatose state.

Jose Gutierrez Guzman’s has become an ever more common story in an American age of mass expulsions. Although he had grown up in the United States (without papers), he was born in Mexico. After receiving a letter requesting his appearance, he went to the Immigration and Customs Enforcement building in Los Angeles and was promptly arrested and deported. Customs and Border Protection agents later caught him crossing the border in San Luis, Arizona, near Yuma, in an attempt to reunite with his wife and children.

“Stop… stepping… on… the… pictures,” Shena insisted.

As she tells the story, Agent Gomez looked at her shirt for a second, then looked up at her and said, “You have that mentality about us. You think we go around abusing.” His tone remained faux-friendly, but his boots didn’t—and neither did those cuffs another CBP agent had put on her. Forcing her hands behind her back, they cut uncomfortably into her wrists. They would leave deep red circular marks.

Border  FenceOn display was a post-9/11 world in which the usual rights meant to protect Americans from unreasonable search and seizure and unwanted, as well as unwarranted, interrogation were up for grabs.

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 US 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 twenty-five 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.”

border patrol signBefore she was so unceremoniously stopped and held, Shena Gutierrez shared the story of her husband at that forty-eight-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 eleven 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 minuscule 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 warned that “a standing military force, with an overgrown Executive, will not long be safe companions to liberty.” With its 240,000 employees and $61 billion budget, the DHS, Whitehead points out, is militarizing police units, stockpiling ammunition, spying on activists, and building detention centers, among many other things. CBP is the uniformed and most visible component of this “standing army.” It practically has its own air force and navy, an Office of Air and Marine equipped with 280 sea vessels, 250 aircraft and 1,200 agents.

On the border, never before have there been so many miles of walls and barriers, or such an array of sophisticated cameras capable of operating at night as well as in the daylight. Motion sensors, radar systems, and cameras mounted on towers, as well as those drones, all feed their information into operational control rooms throughout the borderlands. There, agents can surveil activity over large stretches of territory on sophisticated (and expensive) video walls. This expanding border enforcement regime is now moving into the 100-mile zone.

Such technological capability also involves the warehousing of staggering amounts of personal information in the digital databases that have ushered in the Post-Constitutional Era. “What does all this mean in terms of the Fourth Amendment?” Van Buren asks. “It’s simple: the technological and human factors that constrained the gathering and processing of data in the past are fast disappearing.”

border patrol agentThe border, in the post 9/11 years, has also become a place where military manufacturers, eyeing a market in an “unprecedented boom period,” are repurposing their wartime technologies for the Homeland Security mission. This “bring the battlefield to the border” posture has created an unprecedented enforcement, incarceration, and expulsion machine aimed at the foreign-born (or often simply foreign-looking). The sweep is reminiscent of the operation that forced Japanese (a majority of them citizens) into internment camps during World War II, but on a scale never before seen in this country. With it, unsurprisingly, has come a wave of complaints about physical and verbal abuse by Homeland Security agents, as well as tales of inadequate food and medical attention to undocumented immigrants in short-term detention.

The result is a permanent, low-intensity state of exception that makes the expanding borderlands a ripe place to experiment with tearing apart the Constitution, a place where not just undocumented border-crossers, but millions of borderland residents have become the targets of continual surveillance. If you don’t see the Border Patrol’s ever-expanding forces in places like New York City (although CBP agents are certainly present at its airports and seaports), you can see them pulling people over these days in plenty of other spots in that Constitution-free zone where they hadn’t previously had a presence.

They are, for instance, in cities like Rochester, New York, and Erie, Pennsylvania, as well as in Washington State, Vermont, Florida and at all international airports. Homeland Security officials are scrutinizing people’s belongings, including their electronic devices, from sea to shining sea. Just ask Pascal Abidor, an Islamic studies doctoral student whose computer was turned on by CBP agents in Champlain, New York.

When an agent saw that he had a picture of a Hezbollah rally, she asked Abidor, a US citizen, “What is this stuff?” His answer—that he was studying the modern history of the Shiites—meant nothing to her and his computer was seized for ten days. Between 2008 and 2010, the CBP searched the electronic devices of more than 6,500 people. Like many of us, Abidor keeps everything, even his most private and intimate conversations with his girlfriend, on his computer. Now, it’s private no longer.

Despite all this, the message politicians and the media generally offer is that the country needs more agents, new techno-gadgets and even more walls for our “safety.” In that context, President Obama on July 7 asked Congress for an additional $3.7 billion for “border security.”

Since last October, in what officials have called a “humanitarian crisis,” 52,000 unaccompanied children, mostly from Central America, have been apprehended by Border Patrol agents. News about and photos of some of those children, including toddlers, parentless and incarcerated in warehouses in the Southwest, have led to a flood of articles, many claiming that border security is “strained.” A Border Patrol Union representative typically claimed that the border is “more porous than it’s ever been.” While such claims are ludicrous, all signs point to more money being packed aboard what Whitehead has called a “runaway train.”

Make no bones about it, every dollar spent this way works not just to keep others out of this country, but to lock American citizens into a border zone that may soon encompass the whole country. It also fortifies our new domestic “standing military force” and its rollback of the Bill of Rights.

Resistance Inside the 100-Mile Zone

The first thing Cynthia (a pseudonym) asks the supervisory agent with the green Border Patrol hat and wrap-around sunglasses who stops her car is: “Can I have your name and agent number please?” She’s been halted at a checkpoint approximately twenty-five miles north of the US-Mexican border on a road running east-west near the small town of Arivaca, Arizona, where she lives.

The agent pauses. He looks like he’s swallowed a hornet before he barks, “We ask the questions here first, okay? Do you have some ID on you?”

This starts a tense exchange between the two of them that she videotaped in its entirety. She is only one of many challenging the omnipresence and activities of the Border Patrol in the heart of the 100-mile zone. Like many locals in Arivaca, she is sick of the checkpoint, which has been there for seven years. She and her neighbors were fed up with the obligatory stop between their small town and the dentist or the nearest bookstore. They were tired of Homeland Security agents scrutinizing their children on their way to school. So they began to organize.

In late 2013, they demanded that the federal government remove the checkpoint. It was, they wrote in a petition, an ugly artifact of border militarization; it had, they added, a negative economic impact on residents and infringed on people’s constitutional rights. At the beginning of 2014, small groups from People Helping People in the Border Zone—the name of their organization—started monitoring the checkpoint several days a week.

This Arivaca Border Patrol road barricade, one of at least seventy-one in the Southwest, functions as a de facto enforcement zone away from the border. In Border Patrolese, it’s “an additional layer in our Defense in Depth strategy.” This particular checkpoint isn’t exactly impressive—just a portable trailer with an attached tarp for shade, but it still qualifies, according to one of the patrol’s informational brochures, as “a critical enforcement tool for securing the nation’s borders against all threats to our homeland.”

The agents manning it stop every car on the road, do a quick visual check of its interior and ask the driver and passengers their citizenship. There are also dogs available to sniff each car for traces of drugs or explosives. “Our enforcement presence along these strategic routes reduces the ability of criminals and potential terrorists to easily travel away from the border,” the brochure explains.

The Homeland Security surveillance gaze in the Southwest is, in fact, so pervasive that it has even nabbed singer Willy Nelson in Texas for marijuana possession. It detained 96-year-old former Arizona governor Raul Castro and made him stand in 100-degree heat for more than thirty minutes because a dog detected the radiation from his pacemaker. In the past three years in the Tucson sector, the patrol has made more than 6,000 arrests and confiscated 135,000 pounds of narcotics at checkpoints.

But this is no longer just a matter of inland areas near the Mexican Border. A Border Patrol agent forced Vermont’s senior senator Patrick Leahy from his car at a checkpoint 125 miles south of the New York State border. The ACLU of Vermont unearthed a prototype plan for CBP to operate checkpoints to stop southbound traffic on all five highways through that New England border state.

On Sunday afternoons in Sodus, New York, about thirty miles east of Rochester, green-striped Border Patrol vehicles can sometimes be found parked in front of a laundromat which farmworkers (many undocumented) use. In Erie, Pennsylvania, agents wait at the Greyhound bus terminal or the Amtrak station to question people arriving in town. These are all places where the Border Patrol was all but unknown before 2005. In Detroit, simply being at a bus stop at four in the morning en route to work or fishing in the Detroit River is now “probable cause” for an agent to question you.

Or perhaps it is simply the color of your skin. Arrest records from both bus terminals and railway stations in Rochester, New York, show that of the 2,776 arrests agents made between 2005 and 2009, 71.2 percent were of “medium” complexion (likely of Latino or Arab background) and 12.9 percent “black.” Only 0.9 percent of those arrested were of “fair” complexion.

Back in Arivaca, the agent with the wraparound sunglasses tells Cynthia that she needs to get out of her car. Much like Senator Leahy, she responds that she doesn’t “understand why.”

“You don’t have to understand,” he says. “It’s for my safety. And yours. Do you understand that?”

Then his tone gains an angry edge. He clearly doesn’t like having his authority challenged. “We don’t have time for this. We have criminals here, okay? If you have a political or an emotional situation here”—he makes an emphatic chopping motion with his hand—“I don’t want to hear about it. I want to see your ID.” He pauses. “Now!”

The adrenaline is obviously pumping and he is about to edge up on the limits of what an agent can do, even with extra-constitutional powers. He thrusts his hand through the open window and into the car and unlocks it. With a yank, he pulls the door open from the inside. When Cynthia is out of the car, he asks, his voice rising, “What do you think we’re looking for here?”

“I don’t know,” Cynthia responds.

“That’s where I’m gonna educate you a little bit. Okay?”

“Okay,” she says.

“What happens through this checkpoint is that we catch smugglers of aliens, smugglers of drugs, child molesters, murderers and everything else. Okay? Does that make sense?”

This rural area of Arizona, he insists as they stand under a vast cloudless blue sky, is infested with bandits, criminals and drug dealers. “We have methamphetamine being made and manufactured,” the agent explains. “Do you think methamphetamine is a good thing?”

“Personally, no,” she says.

“Personally, I don’t think so either. I think they’re poisoning our world, okay? So when we ask you just to do something simple, like uncover something, do it! It’s a relief for us that it’s not something dangerous or something else.” By now, the agent is making the full-blown case for Homeland Security’s rollback of the Bill of Rights: the world’s a dangerous place, too dangerous for us not to have a free hand searching wherever we want whenever we want—and it’s your job to understand that new twenty-first-century American reality. He ends with a final dig at her for her initial resistance: “You’re destroying your rights, because what happens is, is that the criminals take your rights away, okay? Not us. We’re here to protect you.”

According to the ACLU’s Lyall, the fact is that the abuses of Customs and Border Protection in that Constitution-free zone are “massively underreported” and “far more prevalent than anyone has been able to document.” Many people, according to him, are simply afraid to come forward; others don’t know their rights.

In Shena Gutierrez’s case, she returned to the same Nogales “port of entry” with two other activists to lodge a complaint about the purse incident. When she refused to leave federal property (for which she now faces charges), the CBP arrested and detained her for hours. This time they did what she described as “an invasive body search.”

“I told them that I had not given my consent to be touched.” They nonetheless made her take off her wedding ring “for safety.” When she resisted, they said that they “would force it off her.” Again, the handcuffs cut into her wrists. This time, an agent kicked her in the ankle from behind. A female agent searched her thoroughly, from head to toe and in her private parts, because she “might have drugs or contraband or documents.”

As the agent groped her, she told me, she began to think yet again about what her husband had gone through. If this can happen to a US citizen, she told me, “Imagine what happens to a person without documents.”

Imagine what can happen to anyone in a realm where, increasingly, anything goes, including the Constitution.

{ 12 comments… read them below or add one }

Marc Snelling July 16, 2014 at 4:27 pm

The Border Patrol is a very expensive joke on all us taxpayers. They slow down legal trade while catching a small percentage of illegal trade. The agents themselves are mostly a waste of space and the BP attracts all the bottom of the barrel candidates. Ones who couldn’t get accepted into the military or police forces. A high school education is not a requirement.

The US-Canada border is even more of a joke. After 9/11 and the bullshiz US rhetoric about Canada being an entry point for ‘terrorists’ the border tightened. Wait times increased, trade slowed down, and after years of this the US quietly backed off some of it’s policies because the BP was losing the US money beyond wasted salaries and equipment.

The funny thing is that the border is a bigger problem the other way. Americans sneaking into Canada trying to get healthcare or sell guns/hard drugs is a bigger problem. Marijuana smuggling into Canada is not a problem though. It’s worth more in the US.

The border is an artificial line in the Northeast even more than the Southwest. There is a town in Vermont/Quebec where the town library is on the border. A border that nobody cared much about until 9/11.

I feel for Shena Gutierrez. Her story reminds me of the looks I got from the border guards when I wore my ‘No Army’ t-shirt back from Costa Rica. The biggest possible sin for many agents seems not to be smuggling, but not respecting their authority.


Nick July 20, 2014 at 6:49 pm

You’re severely confused, and I highly advise you educate yourself before you choose to babel on a topic you know nothing about.

First off, a high school education is POSITIVELY a requirement to become and agent or officer with CBP. To even qualify for the GS-5 level, which is the lowest, you must meet the following requirements-

“To qualify at the GL-5 level, you must have a substantial background of experience (paid, voluntary, full- or part-time) that demonstrates the ability to take charge, make decisions, and maintain composure in stressful situations; your experience must demonstrate an ability to maintain interpersonal relationships with coworkers and the public and a propensity to learn law enforcement regulations, methods and techniques both on the job and through formal instruction. The work experience does not have to be law enforcement related. (You must describe all work experience in your application for employment in order to gain proper consideration.)


If you do not have the work experience described above, a four-year college degree can substitute for and is fully qualifying for the GL-5 level. The degree is not required to be recent or in any particular field.


You may qualify through a combination of education and work experience (if you have not completed your degree). Each year of full-time semester or quarter units equates to three months of general work experience. For example, two (2) years of full-time college education would equate to six (6) months of experience. If this were combined with an additional six (6) months of generalized work experience, you could qualify for the GL-5 position.”

-Taken from

Second, saying the US-Canada border isn’t a concern is one of the most blatantly ignorant statements you could make when speaking on the border situation. If it was not secure, it would be flooded instantly. A strong front on all sides is needed; and this is simply common sense.

Educate yourself first. Save us all some brain damage.


Marc Snelling July 21, 2014 at 10:39 am

No diploma needed in Border Patrol, and critics are worried
Critics call Border Patrol standards lax
Recruits are accepted without a high school diploma or GED:


Nick July 21, 2014 at 10:44 am

That’s really a cute article, now I’d like you to note the date- April 1, 2008

We are more than halfway through 2014, as anything in this fast changing world, time passes and standards evolve.

The military also used to only take a GED, this is not the case in most branches now.

It’s no longer relevant when a source is over 6 years old. My quote directly from is from today.


Marc Snelling July 21, 2014 at 10:56 am

Or standards devolve. When that article was written the BP said they already had people without high school. Then they implemented the no-high-school-required policy and hired more. Surely many of them are still working for the BP so fail to see how it is not relevant.

Your statements about the US-Canadian border are ridiculous. The border would be flooded instantly? Which way are you talking about. Americans filling up Canada trying to get healthcare?


Katydid52 July 17, 2014 at 11:29 am

How is all this occurring, and the SW border is still swiss cheese?

Why didn’t all of this end in 2008?

I would think it would work out better to bring our soldiers home from all the litter boxes they are stationed in, where they are fighting futile battles in tribal slaughters that have been going on for thousands of years, and station them at our SW border.

It has been exposed in the past, and is no surprise, many BP agents are corrupt, are underpaid, and are constrained by regulations that prevent them from actually doing a proper job. Clean house, bring in the military, as the situation has evolved into an invasion, and shut it all down.


Aging Hippie July 17, 2014 at 11:33 am

Invasions usually involve adults who are armed and well equipped and act in a coordinated fashion, not destitute women and children fleeing from war zones. The term “refugee” seems a much better fit than “invader”.


Graham Wellington July 17, 2014 at 12:10 pm

But they do pilliage resouces meant for actual legal citizens and drive down wages.

What warzone are they fleeing from? Gang violence is one thing but a black kid living on the south side of chicago lives in a war zone too.

Why is it that 80% of these “children” are teens? Kinda like how gun control groups do the same thing to make their cause larger than it is.


Aging Hippie July 17, 2014 at 12:18 pm

Guatemala, Honduras, and El Salvador rate #1, #5, and #9 globally in murders per 100,000. They have little or no functioning government, in Honduras there has been a military coup. Children are subject to kidnapping, rape, forced recruitment by gangs.

All this is the result of US action in the region; the despots killing and imprisoning these central American children were trained at SOA, and the lawlessness of the region is a direct consequence of DEA activity there.

As for the resources and wages… Cancel just one of the military’s multi-billion dollar jets that blow up on the runway, and that will pay to feed, clothe, house, educate and medically treat all these children. I don’t think 8 year old refugees have much of an impact on other people’s wages, except maybe to increase demand and create jobs.


Graham Wellington July 17, 2014 at 2:25 pm

That’s too bad. Maybe they should ban private ownership of firearms. That’ll solve the problem. You know children in some parts of the US are forcefully recruited into gangs too. And no functioning government? Really? The first lady of Honduras was in Texas not too long ago to greet her fellow countymen/women. You’d figure she be pretty embarassed but she knows the honduran economy will soon be getting $$$ sent back for the familia the illegals left behind. In 2012 mexican nationals in the us sent almost 23 billion dollars back home. 23 billion is 23,ooo people each carrying a suitcase with a million bucks in cash. Thats alot of moolah! Imagine if all that bread stayed in the country.

Oh, it’s our fault because of US imperialism. So can other victim countries of america export their poverty problem on us?

How about spending that crashed jet $$$ on our own citizens instead of those that don’t legally belong here?

Who pays for the food, housing and education for these 8 year olds and their moms? We do or at least citizens that pay income tax. Unless mommy is turning tricks they’re gonna be governnent dependants. 80% of these children are between the ages of 14 and 18 and will be competing for the same low or no skill jobs as our own citizens. Does that sound fair to you? Put yourself in the shoes of a young underrepresented valid minority with low or no skills. Why should he or she have to compete for jobs with those who shouldnt be here in the first place?


Aging Hippie July 17, 2014 at 2:32 pm

I believe that we destroyed their countries with our intrusive foreign policy, and we owe them something for that crime we committed against them.

I need to see a cite for this 80% figure.

These children are not from Mexico, any discussion about Mexicans is irrelevant. The only commonality between them is race, which is what any comparison amounts to.


Katydid52 July 19, 2014 at 11:57 am

In most large urban cities in our country children go to school in aging, decrepit buildings long overdue for renovation or replacement. They have days off when it’s too hot because they don’t have A/C. If anyone has spent any time in the midwest or south, or maybe anywhere east of Cali, an old building with no A/C in August and September is awful.

So, are we to tell these children that we do not have the money for their schools, for their education, to help them learn, but we have millions to spend on illegals?


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