Detained By The Feds For Not Answering Questions

[moonwhim]

I Am Detained By The Feds For Not Answering Questions

Paul Karl Lukacs
http://knifetricks.blogspot.com/2010/04 ... ering.html


I was detained last night by federal authorities at San Francisco International Airport for refusing to answer questions about why I had travelled outside the United States.

The end result is that, after waiting for about half an hour and refusing to answer further questions, I was released – because U.S. citizens who have produced proof of citizenship and a written customs declaration are not obligated to answer questions.

* * *

“Why were you in China?” asked the passport control officer, a woman with the appearance and disposition of a prison matron.

“None of your business,” I said.

Her eyes widened in disbelief.

“Excuse me?” she asked.

“I’m not going to be interrogated as a pre-condition of re-entering my own country,” I said.

This did not go over well. She asked a series of questions, such as how long I had been in China, whether I was there on personal business or commercial business, etc. I stood silently. She said that her questions were mandated by Congress and that I should complain to Congress instead of refusing to cooperate with her.

She asked me to take one of my small bags off her counter. I complied.

She picked up the phone and told someone I “was refusing to cooperate at all.” This was incorrect. I had presented her with proof of citizenship (a U.S. passport) and had moved the bag when she asked. What I was refusing to do was answer her questions.

A male Customs and Border Protection officer appeared to escort me to “Secondary.” He tried the good cop routine, cajoling me to just answer a few questions so that I could be on my way. I repeated that I refused to be interrogated as a pre-condition of re-entering my own country.

“Am I free to go?” I asked.

“No,” he said.

The officer asked for state-issued ID. I gave him my California Identification Card. I probably didn’t have to, but giving him the ID was in line with my principle that I will comply with an officer’s reasonable physical requests (stand here, go there, hand over this) but I will not answer questions about my business abroad.

The officer led me into a waiting room with about thirty chairs. Six other people were waiting.

The officer changed tack to bad cop. “Let this guy sit until he cools down,” the officer loudly said to a colleague. “It could be two, three, four hours. He’s gonna sit there until he cools down.”

I asked to speak to his superior and was told to wait.

I read a book about Chinese celebrities for about 15 minutes.

An older, rougher officer came out and called my name. “We’ve had problems with you refusing to answer questions before,” he said. “You think there’s some law that says you don’t have to answer our questions.”

“Are you denying me re-entrance to my own country?” I asked.

“Yes,” he said, and walked away.

I read for about five more minutes.

An officer walked out with my passport and ID and handed them to me.

“Am I free to go?” I asked.

“Yes,” he said.

But we weren’t done.

I picked up my checked bag and was told to speak to a customs officer. My written declaration form had been marked with a large, cross-hatched symbol that probably meant “secondary inspection of bags.”

The officer asked if the bags were mine; I handed him my baggage receipt.

He asked if I had packed the bags myself. I said I declined to answer the question.

He asked again, and I made the same reply. Same question; same response. Again; again.

“I need you to give me an oral customs declaration,” he said.

“I gave you a written declaration,” I said.

“I need to know if you want to amend that written declaration,” he said. “I need to know if there’s anything undeclared in these bags.”

I stood silently.

Visibly frustrated, he turned to a superior, who had been watching, and said that I refused to answer his questions.

“Just inspect his bags,” the senior officer said. “He has a right to remain silent.”

Finally! It took half an hour and five federal officers before one of them acknowledged that I had a right not to answer their questions.

The junior officer inspected my bags in some detail, found nothing of interest, and told me I could leave.

* * *

Principal Take-Aways

1. Cops Really Don’t Like It When You Refuse To Answer Their Questions. The passport control officer was aghast when I told her that my visit to China was none of her business. This must not happen often, because several of the officers involved seemed thrown by my refusal to meekly bend to their whim.

2. They’re Keeping Records. A federal, computer-searchable file exists on my refusal to answer questions.

3. This Is About Power, Not Security. The CBP goons want U.S. citizens to answer their questions as a ritualistic bow to their power. Well, CBP has no power over me. I am a law-abiding citizen, and, as such, I am the master, and the federal cops are my servants. They would do well to remember that.

4. U.S. Citizens Have No Obligation To Answer Questions. Ultimately, the cops let me go, because there was nothing they could do. A returning U.S. citizen has an obligation to provide proof of citizenship, and the officer has legitimate reasons to investigate if she suspects the veracity of the citizenship claim. A U.S. citizen returning with goods also has an obligation to complete a written customs declaration. But that’s it. You don’t have to answer questions about where you went, why you went, who you saw, etc.

Of course, if you don’t, you get hassled.

But that’s a small price to pay to remind these thugs that their powers are limited and restricted.

[InfoWarrior82]

Imagine if EVERYONE was to realize their rights and do this every day! Of course, I am guilty since I answer all of their intrusive and unjustified questions. I just want to get to my destination! Coming back home, though... I could see myself taking more of a risk.

[NoGreaterLove]

Great job! Many times law enforcement either do not know what their limits are or they have gotten away with something so many times that they began to believe it is their right.

If every citizen knew their rights and exercised them it would put a check on illegal activities by law enforcement.

And by the way, I am pro law enforcement, just anti violation of rights.

[JerL]

Well that was an interesting story, thanks for sharing.

[moonwhim]

10 Brief Responses To 700 Comments About Refusing To Answer Questions At Passport Control

Paul Karl Lukacs


My post about refusing to answer questions from Customs and Border Protection officers when re-entering the U.S. has resulted in a lot of debate. My thanks to everyone who joined the conversation, including the authors of the more than one hundred posts that called me a douchebag. Let me address the major points raised, although there are multiple issues – such as the fine distinction between CBP’s immigration powers and its customs powers – that I need to truncate or elide to keep this response from becoming a law review article.

(BTW, I’m blown away by the hubbub. In the last three days, this blog has received more than 75,000 hits. The original post currently has 175 comments, while the Boing Boing report has 172 comments, the Consumerist article 312 comments, and the Reason piece 121.) (Update: The Hacker News section of ycombinator currently has 104 comments.)


1. A U.S. Citizen Cannot Be Denied Re-Entry To Her Own Country.

A federal judge in Puerto Rico – a territory sensitive to the rights and privileges of its residents' U.S. citizenship -- said it best: "The only absolute and unqualified right of citizenship is to residence within the territorial boundaries of the United States; a citizen cannot be either deported or denied reentry." U.S. v. Valentine, 288 F. Supp. 957, 980 (D.P.R. 1968).

So, while some commenters worried – or advocated – that a citizen who refused to answer CBP questions would be denied re-entry to the United States, the U.S. government does not have the power to prevent a citizen’s re-entry.


2. (The Right To) Silence Is Golden.

This is principally about the right to silence. CBP officers are law enforcement (pictured), who can detain you, arrest you and testify against you in criminal court. You place yourself in jeopardy every time you speak to them about anything.

CBP officers are not your friends. CBP officers treat returning U.S. citizens as potential criminal defendants. You should likewise treat them as if they were corrupt cops on a power trip, targeting you to goose their arrest statistics. The best way to protect yourself against their depredations is to refuse to speak to them or to answer their questions.


3. Any Misstatement To A Federal Officer Can Result In Your Arrest.

If a federal officer claims you lied to him, you can be arrested and charged with the crime of making false statements. You do not have to make the statements under oath (which would be the different charge of perjury).

This statute – which is referred to as Section 1001 and which can be read here in all its prolix glory -- is the reason why Martha Stewart has a Bureau of Prisons number.

The only way to immunize yourself against a false statements charge is to refuse to speak to federal officers.

“Wait,” you ask, “what about telling the truth?” Doesn’t work. If, in the course of your conversation, you mis-remember something or speak inarticulately, you can now be arrested. Innocent mistake? Prove it in court after being jailed, charged, tried and paying for a lawyer.

Cardinal Richelieu is alleged to have said, “If you give me six lines written by the hand of the most honest of men, I will find something in them which will hang him.” That’s also how the false statement charge works. Any cop or prosecutor can concoct a “lie” from your statements.

The only way to protect yourself from a false statement charge is to refuse to speak to federal law enforcement officers.


4. “Business or Pleasure?” Is A Trap.

Which brings us to the reason why, contrary to the belief of many commenters, the seemingly innocuous CBP question of whether your international trip was for business or pleasure is a trap.

You say “business” (because you were at a conference) but the stamps in your passport indicate that you’re returning from a tourist destination like Bali. Now the officer can argue that you have made a false statement, have engaged in an attempt to claim improper business deductions under the Internal Revenue Code and have broken any other federal criminal law -- there are more than 10,000 -- which he can mold around the circumstances.

You and your travelling companion say “pleasure” but you’re returning from Antwerp, a city known for its diamond trade not its nightlife. Liars and smugglers! And, with two people involved, the feds can levy conspiracy and aiding and abetting charges.

[Clarification: I'm not saying these charges would stick. I'm saying they can be concocted because of purported inconsistencies in your story. My point is that the officer acting in bad faith wouldn't have that ammunition if you invoked your right to silence.]

Answering the question also immediately opens you up to more questions, which can lead to more chances for the feds to claim that you said something suspicious, inconsistent or false.

(In addition, and this is very much a lawyer’s objection, the question requests a legal conclusion. I have no idea how many federal laws create a distinction between business and pleasure travel or what standards are used. It's not my call.)


5. Politeness Would Make No Difference.

Many of the commenters took issue with my rude tone toward the CBP officers. This criticism is profoundly misguided.

To the authoritarian mind, there are only two responses to a demand: submission or defiance, and anything less than total submission is defiance. A Lutheran grandmother from Savannah with manners from an antebellum finishing school would be hassled if she refused to answer CBP’s questions.

Answering with a tart “None of your business” underscores that I will not be pushed around and – potentially important from a criminal procedure perspective – is an unambiguous statement that I am not waiving any rights. It is a line in the linoleum.

Further, why is politeness a one-way street? Many commenters relayed stories about rude, abusive, mean and intrusive CBP officers. The entire cop ethos is based on intimidation and domination. We should be able to give the officers a little of their own medicine, and, if they’re as tough as they claim, they can take it.


6. There Is A Profound Difference Between A U.S. Citizen Entering a Foreign Country and a U.S. Citizen Re-Entering Her Own Country.

Multiple commenters confuse or conflate the distinction between a U.S. citizen entering a foreign country (where she can be refused entry for any reason or no reason) and a U.S. citizen returning to the U.S. (where she cannot, as noted in Item No. 1, be denied entrance). These are completely different situations with almost no overlap in terms of governing law, procedures, rights, anything.

That being said – and this is a point several commenters made – entering the U.S. is a cruder experience than entering most other countries. Although I enter China multiple times a year, I have never been asked a question by an immigration or customs officer. When I have entered Thailand without a visa, the officer’s questions have been limited to the duration of my visit (to make sure I am within the Kingdom’s visa waiver rules). Once, a German immigration officer wanted to know my plans, and that interview was polite and three questions long. And, in my reading of travel blogs, the U.S., Canada and Great Britain are the three countries consistently mentioned for their overreaching border officers.

Even adjusting for the fact that a citizen has more interactions with the officers of his own country (and therefore more likely to have a bad encounter), U.S. border officers have a needlessly hostile view of the citizens who, on paper, they serve.


7. “Just Doing My Job” Is Bunk.

Many of the commenters are obviously CBP officers or shills – the repeated references to how CBP officers are underpaid is a tell – and they chant the mantra that the officers on the desks are front-line personnel merely carrying out policy.

I will resist the temptation to pull a Godwin and will merely respond, I don’t care. When a person accepts and keeps a job which involves pressuring and tricking citizens into waiving their rights of privacy and silence (while refusing to admit that the citizens possess those rights), the person has to deal with attitude on the incredibly rare occasion when someone exercises their rights.

You made your choice, officers. Don't whine when someone points out the legally and morally dubious nature of the job you voluntarily accepted, remain at and could quit at any time.


8. The Other People In Line.

This is a bright red herring. To the extent any immigration or customs line is being slowed down by a citizen refusing to answer questions, it’s because the CBP officer refuses to accept the fact that the citizen is lawfully exercising her rights (as several commenters noted).

As a practical matter, there’s almost no hold up. When a citizen refuses to answer questions at the first CBP kiosk, she is ordered to secondary within a minute or two. The wait is less than it might be if a returning citizen submitted to questioning or had a complicated, multi-national family situation.

In addition, living in a free country means that sometimes you are inconvenienced by others’ assertions of their rights. On occasion, you have to see advertisements for products you think are disgusting, have your morning commute hampered by a strike, or have to drive half a mile out of your way because of the GLBT parade.

Perhaps I or a like-minded person made your stay in the airport four minutes longer. You’ll live.


9. Small, Successful Battles Can Prevent Large, Losing Battles.

When it comes to rights, you don’t know in advance what battle will be important. But you do know, based on history and human nature, that a right undefended will shrivel and die. If you don’t fight for the small right, you won’t be in a position to assert the large right.

Moreover, the existence of the right of privacy is usually based on whether people have a current expectation of privacy in a certain situation. To the extent that people decline to assert their right of privacy, it slips away. Lack of vigilance by citizens begets more government power.


10. Travellers Who Have Presented Proof of U.S. Citizenship Should Not Be Detained For Refusing To Answer Questions.

That’s what this is all about. Once a traveler has provided bona fide proof of U.S. citizenship, he or she is entitled to re-enter the country. CBP should not be asking questions as a matter of course, and, if citizens assert the right to silence, CBP should not be detaining them.

[larsenb]

Good stuff, Moonwhim. Thanks for finding and posting. His commentary is especially good in driving home the points. I just hope I have the moxy to stand up for my rights in a similar manner during crunch time.

[bobhenstra]

Good stuff, Moonwhim. Thanks for finding and posting. His commentary is especially good in driving home the points. I just hope I have the moxy to stand up for my rights in a similar manner during crunch time.

I always answer those kind of questions with the answer "fishing!" Then I get big eyes just waiting for them to ask me to explain, I'm more than willing to bore them for hours telling fishing stories. They usually don't ask more questions, I must seem far to "willing" to expound further!

I have a friend who always tells them "looking for a mail order bride! I had to check out the service first!" I was with him one afternoon when a female security agent started asking him questions, he give his pat answer, then glanced both directions, leaned over and ask "are you single?"---No more questions!

I think you can still have fun!

Bob

[larsenb]

Good stuff, Moonwhim. Thanks for finding and posting. His commentary is especially good in driving home the points. I just hope I have the moxy to stand up for my rights in a similar manner during crunch time.

I always answer those kind of questions with the answer "fishing!" Then I get big eyes just waiting for them to ask me to explain, I'm more than willing to bore them for hours telling fishing stories. They usually don't ask more questions, I must seem far to "willing" to expound further!

I have a friend who always tells them "looking for a mail order bride! I had to check out the service first!" I was with him one afternoon when a female security agent started asking him questions, he give his pat answer, then glanced both directions, leaned over and ask "are you single?"---No more questions!

I think you can still have fun! Bob

That's great! May be a better option than just refusing to answer.