SHIFTINESS: THE BORDER IN EIGHT CASES
Where does here end, and there begin? (part 2)
5. Borders and bodies.
My favorite constitutional amendment is the fourth, which protects the people from unreasonable searches and seizures. The Bill of Rights overall limits how government intervenes in our lives, but the Fourth Amendment feels most personal, most visceral, because searches and seizures involve state incursions into our homes, our belongings, and even our bodies. The Fourth Amendment also works a kind of legal alchemy on the border, changing its substance.
In 1983, Rosa Montoya boarded a plane in Bogotá, having first swallowed eighty-eight balloons filled with cocaine. She carried in her body the balloons, potentially small bombs of poison, into the airport in Los Angeles. When she landed, she was questioned by customs officials, who locked her up for about twenty-four hours, until they got a warrant and a doctor performed a rectal exam. The doctor fished out the first of the bags, and the rest she passed. Her case wound up before the Supreme Court.
For Justice William Rehnquist, writing the majority opinion, Rosa Montoya was a criminal who during her detention refused food and drink, refused to use the bathroom, retracted her consent for an X-ray, then falsely claimed to be pregnant. Justice William Brennan, in his dissent, paints a different picture. He mentions the snapshots of Rosa Montoya’s children that she extracted from her purse whenever someone new entered the lockup room. He discusses the strip-searches she endured and writes that, when told she couldn’t leave until she excreted into a waste basket, she responded, “I will not submit to your degradation, and I’d rather die.”
I don’t know anything more about Rosa Montoya than this. But ultimately United States v. Montoya de Hernandez isn’t about her. It’s about what the government can subject a person to at the border, where usual Fourth Amendment protections don’t apply. That’s why the court found her detention reasonable, and why to this day people can find themselves locked up at the border, hours on end, with no idea what they’re suspected of having done wrong. I’ve become used to the idea that the government has more power at the border and people less, so stories like these don’t surprise me, and sometimes I find myself more astonished at people’s outrage when they’re put through extensive questioning than at the treatment itself. It’s the border. What did you expect?
To shake me back to reason, it takes a lawsuit like one filed by the ACLU of Texas in December, 2013. The ACLU’s client says that, after a drug-sniffing dog jumped on her at the border crossing, she was strip-searched, probed anally and vaginally, shackled to a hospital exam table and probed again, given a laxative that made her defecate, and put under X-ray and CT scans. She asked the border agents if they had a warrant. They told her they didn’t need one and asked her to sign a waiver if she didn’t want to be billed. She refused, and the hospital sent her a statement in the thousands of dollars. At every step, the men who searched her found no drugs.
Does the border mean that strange men can put their fingers in your vagina, again and again, without your consent? In his dissent in Montoya de Hernandez, Justice Brennan raised a warning about this kind of abuse—although he may not have imagined abuse of this magnitude. “Indefinite involuntary incommunicado detentions ‘for investigation’ are the hallmark of a police state,” he wrote, “not a free society.”
There’s another element of strangeness that isn’t acknowledged explicitly in the Montoya de Hernandez decision. The border that Rosa Montoya was trying to cross wouldn’t show up on the map as a border. It’s somewhere in the L.A. airport, not at the line between Juárez and El Paso, or at Peace Arch International Park, which links Washington and British Columbia. In legal terms, border points such as those at airports are called the “functional equivalent of the border.” They also include territorial waters, spots where roads coming from the actual border converge, UPS sorting hubs, etc.: places that aren’t exactly the border, but close enough.
In other words, to conduct a border search or detention you have to be at the border, but where is the border? On this question, one court has explained, “the border is elastic.” What’s important isn’t that the search takes place at the border but that the person or thing being searched be associated with the border. There’s a three-pronged test to see if this association exists. It asks: Can we be reasonably certain the person/object crossed the border? That the person/object didn’t materially change since crossing? That the search was carried out as soon as practical? Then there is the “extended border” doctrine, with its own approach. These are the kinds of legal tools that, after some time in law school, you begin to see as entirely reasonable. And maybe the tools do make sense, but at some point the inquiry should begin to feel a little metaphysical.
The border is elastic, like a rubber band? Such an idea should make the phrase “border security” evaporate into fantasy.
But if it’s a fantasy, it’s enacted in real life. The ACLU has identified a “Constitution Free Zone” radiating one hundred miles from the border. In this zone, law enforcement sets up checkpoints and patrols bus and train terminals, asking people for papers. And legal scholar Jennifer Chacón has written about border powers washing into the interior, becoming part of everyday policing. In Arizona, with their “papers please” law, state legislators have been explicit in their belief that everyone should be prepared to show the badge of their belonging. But they don’t really mean everyone, and the Supreme Court has held that government agents may consider race when deciding who to stop near the border. So, maybe the border isn’t just a place but also a trait some people take with them wherever they go.
6. Being and not being.
Since three of my four grandparents passed through Ellis Island, I think of it as a symbol of belonging, but it also stands for a strange idea: that a person can be in the United States without being in the United States. In the 1950s, this happened to Ignatz Mezei, whose story is documented best by law professor Charles Weisselberg.
Born in Gibraltar, Hungary, or somewhere else—it’s never entirely clear—Mezei had moved to Buffalo in the 1920s, where he lived for more than twenty years, working as a cabinetmaker, selling war bonds, serving as an air-raid warden, and so forth. In 1948, with Europe still in turmoil after the war, he traveled to Romania to see his dying mother, but Romania denied him entry. He wound up stuck in Hungary for nineteen months, unable to obtain an exit visa. When he finally got the visa, he headed back home from France on a steamer, but immigration officials stopped him at Ellis Island. The government had received a confidential tip that he was a subversive. There would be no hearing in which he could argue otherwise. The attorney general declared his entry “prejudicial to the public interest” and ordered him permanently excluded.
Detained on Ellis Island, Mezei endeared himself to the people in charge. He fixed things—the pool tables, the couches—and later the guards and officials remembered him fondly to the New York Times, calling him “a nice man.” While he tinkered and waited, the government was looking for another country for him. “During his detention,” the Times reported, “he was twice put on French Line ships for return to Europe, but was rejected by England and France.” Hungary didn’t want him, and various Latin American countries didn’t, either.
Throughout, Mezei asked to be let back into the United States, where he was but wasn’t. He filed five habeas corpus petitions to at least get a hearing, and finally he won the fifth. He left Ellis Island under a $3,000 bond, and reported to immigration officials in Buffalo every week while his case continued. During this time in Buffalo, legally speaking he remained on Ellis Island, waiting to see if he’d be able to cross the border into the United States.
The government appealed the grant of habeas and won in the Supreme Court: because Mezei hadn’t entered the United States, the decision went, he didn’t have the same rights to a hearing as if he’d been in the country. It didn’t matter that he’d been detained for so long on Ellis Island, the court said, because “harborage at Ellis Island is not entry into the United States.” The time he spent out on bond in Buffalo didn’t count, either.
After the court’s decision, Mezei headed back to the island to resume his indefinite detention. A photo in the New York Times captured him on this journey: a man in late middle age with graying hair and a neat mustache, dressed in a suit with vest and tie, framed between two bars aboard the ferry. He looked almost jaunty, but the caption called this his “journey to nowhere.” He’d brought along “a bag of upstate apples in one hand and his tools and clothing in the other.” He still struggled with English and, through his Hungarian-speaking attorney, said, “I feel as if I was walking to death.”
His case got press attention. Finally, the U.S. attorney general decided to let him go before a board of special inquiry. The hearing revealed that Mezei’s life had some complications. First, there was a criminal conviction. Back in 1935, he’d bought seven bags of stolen flour and received a ten-dollar fine. His wife attempted to explain: he’d thought she’d ordered the flour, it was a mistake, but no matter—the conviction made him excludable. Then there were the political activities, namely his participation in the Hungarian lodge of the International Workers Order, which had been placed on a list of subversive organizations. Mezei denied being a communist; the government produced witnesses—one later revealed to be a paid perjurer—who testified that he was. On April 19, 1954, the board declared him a security risk, and it seemed he’d be on Ellis Island forever.
In August, though, the Justice Department granted him parole for reasons unknown. As a parolee, Mezei left Ellis Island and boarded a train for Buffalo, all still without legally being in the United States. Even in western New York—where, banned from the Carpenters Union, he subsisted on bottom-of-the-barrel jobs—he took the border with him and never managed to cross over.
A few years ago, I saw that Mezei’s name had come up in the case of seventeen Uighurs, Muslim refugees from China who’d been scooped up in the war on terror and imprisoned at Guantánamo. There they spent year after year in grim isolation, even after the U.S. government determined it had no authority to keep them locked up, because: where to send them? They couldn’t go back to China, which they’d fled and China was pressuring other countries not to take them. So, the Uighurs proposed making their lives in the United States, and why not? The U.S. had reached into Afghanistan and taken the Uighurs. The Obama administration considered the proposal, but the politics got messy. Elected officials from both parties objected, and then Senate Minority Leader Mitch McConnell told the Associated Press that Americans “don’t want these men in their neighborhoods.”
The Uighurs sued and won a favorable ruling from a district court judge, who ordered them released into the U.S. The victory was short-lived: the appeals court reversed with language that chills. “An undercurrent of petitioners’ arguments is that they deserve to be released into this country after all they have endured at the hands of the United States,” wrote Judge Raymond Randolph. “But such sentiments, however high-minded, do not represent a legal basis for upsetting settled law and overriding the prerogatives of the political branches.” In this settled law, he included the decision that would have kept Ignatz Mezei confined to Ellis Island for the rest of his life, without so much as a hearing; many scholars had considered Mezei a legal relic.
I read Judge Randolph’s words and find them astonishing. Shouldn’t the Constitution protect these men—refugees from Chinese repression—from perpetual detention in a prison camp? No, said Judge Randolph, pushing the Uighurs beyond the edge of the Constitution. Despite recent Supreme Court decisions affirming the rights of Guantánamo prisoners, he declared that “the due process clause does not apply to aliens without property or presence in the sovereign territory of the United States.”
In this case, I don’t know how to think of the border as anything but a bald exercise of power and a heartless practical joke.
The Uighurs aren’t on Guantánamo anymore. Their lives being not entirely their own, some were sent to Albania, others to Bermuda, Palau, Switzerland, and the last to Slovakia. In 2012, two were shipped off to El Salvador, the country that started me wondering about the oddity of borders.
7. Arrive and forget.
It’s the spring of 1992, I’m in my maternal grandparents’ apartment in Philadelphia, and my grandmother is commenting on the Haitians: specifically, the boat people we’ve seen on television lately, bobbing in overloaded vessels as Coast Guard officers lean from sleek cutters, poised for rescue.
In his working life, my grandfather was a neighborhood pharmacist who’d vaulted himself into the lower middle class. Now my grandmother and he live in a tidy apartment filled with family china and ceramic bowls generous with Pearson’s Coffee Nips and other wrapped candies.
“They’re so ragged looking,” my grandmother says of the Haitians, who are risking their lives to reach the United States.
The Haitian president, Jean-Bertrand Aristide, has been overthrown, and paramilitaries are beating people, killing them, taking over opposition radio, broadcasting threats on its own station. From what my family and I know of Haiti, this kind of violent repression is nothing new; we remember the days of the Duvalier dictatorship, before Aristide’s election, and in my mind I recreate an image of Michele Duvalier, slender and elegant wife of dictator Jean-Claude, smoking a long cigarette as her family flees to the airport in their Mercedes. But the boat people are not elegant, and my grandmother asks, “What can they possibly do here?”
She’s forgotten that she comes from boat people, too. She was born in the Lower East Side in 1908, months after her family landed, following a journey that must have involved trains, worrying, waiting, and bribery, all before the trip over the ocean. They traveled steerage, which reeked of vomit and shit, and they must have reeked themselves when they emerged into sunlight and squinted at their new city. They didn’t have a penny to their name. When my grandmother learned to speak, she learned Yiddish first. What did her family do here in the United States?
I suspect they did pretty much anything they could. They sewed and haggled. They were people in transition, and it’s this transition I see when I look at historical photos of the arriving Jews. I see both their dark foreignness and the Americans they will someday become, two inseparable qualities. For me, that’s the best of the United States: the constant change and renewal, not necessarily a Puritan move toward perfection as much as a fortunate inability to be a single, unchanging thing, no matter how much we may try to fix that. My family slipped past the border before it was drawn against them in 1924, when Congress said no more Jews.
Almost seventy years later, when my grandmother and I looked at the Haitians in their boats, we saw black people whom our government was trying very hard to keep from becoming Americans. I didn’t know then that it had been presidential policy since 1981 to have the Coast Guard net the Haitians before they hit our shores—in fact, before they even reached our territorial waters. Over the years, this policy took different forms. For a time, the Coast Guard was warehousing Haitians on Guantánamo, leaving them to languish in tent camps, if it thought they’d be persecuted in Haiti. The rest the Coast Guard ferried back. Then, in 1992, President George H.W. Bush decided there was no more room at Guantánamo and ordered that, from then on, all Haitians be sent back, refugees or not.
It seems to me that at the heart of Bush’s executive order lay a border control problem as—or even more—complex than the one he was trying to solve. The order announced that the United States had no legal obligations to refugees outside our territorial waters—their rights began only at the border. But what about the power that the U.S. exercised in the name of law enforcement? This didn’t stop at the border. The Coast Guard traveled into the high seas, stopped foreign boats, questioned passengers, demanded papers, and forced the Haitians back to Haiti.
Reaching Port-au-Prince, the Coast Guard had to hose some of the returning refugees off the boats—because the refugees knew what they were facing. As a writer for the Miami New Times, Steve Almond reported the stories that some repatriated Haitians had recounted to the United Nations High Commission on Refugees. They told stories of the military hunting returnees down, herding them onto trucks, shooting them to death. Many fled again.
Haitian community groups sued the administration. In March 1993, the Supreme Court heard the case challenging the new executive order, and the plaintiffs argued that the government was barred from repatriating any refugee, regardless of where it stopped them. The court ruled that the refugee statute and the U.N. treaty on refugees gave the Haitians no protection in international waters and also set no limit on what the U.S. government could do there. The relevant law, the court said, is “completely silent with respect to … possible application to actions taken by a country beyond its own borders.” Only Justice Harry Blackmun dissented.
I first read this decision in the 1990s and still struggle with it. The U.S. was venturing as law enforcers into a place where refugees had no rights. Was it a lawless zone or not? I know people will say this question is naïve. The government was dealing with reality, a challenging refugee crisis, etc.
But that’s not all that’s real. When the Haitians were heading toward Florida, I was a twenty-two-year-old college student and understood nothing about Haiti. I certainly didn’t know that, by 1992, Haiti and the United States had a “long, torrid relationship,” in the words of journalist Amy Wilentz. I don’t think that relationship began only in 1915, when the U.S. invaded Haiti, ostensibly to save it from chaos only to occupy the country until 1934 and establish what historian Donald Cooper called a “thinly-disguised military dictatorship.” Still, the occupation is a pretty significant element of our relationship with Haiti—the starting point for “treat[ing] Haitian governments, at best, as rubber stamps for U.S. policy and for American businesses working in Haiti,” as Wilentz argues—and yet something few Americans know anything about.
This is another thing about the border: it veils what we see and what we know, even about ourselves. It protects our sense of virtue, creates a world in which we can act as empire while believing that we don’t. So, if our law regards Haitian refugees as “strangers,” it may be telling the truth, but they’re only strangers to us; we aren’t strangers to them. And maybe my family and I carry the border, too, but not like the people who are racially marked by it. We’ve assimilated it into our Americanness, so that it changes what we see, and we don’t recognize any part of ourselves in the Haitians anymore.
8. Adorning the fantasy.
When I read the map-making judicial opinions, I fall into their funnel of logic. The justices examine statutory language and precedent, and their conclusions seem inevitable. In the Haitian repatriation decision, Justice John Paul Stevens devotes several paragraphs to discussing whether section 243(h)(1) of the Immigration and Nationality Act applies only to the attorney general or to the executive branch more broadly. Congress carefully drafted the statute, so the distinctions are important if we are to have a government of laws. I walk through the parsing of language and feel the weight of statutory grammar—I’ve drafted legislation, so I know the details matter.
But then I step away from the decisions, and rather than retaining their logic they become patches in a jagged whole. This is the opposite of what occurs with a pointillist painting, where distance produces clarity. Justice Henry Billings Brown seems to experience this incoherence, if for just a moment, in his opinion in Downes v. Bidwell, the Puerto Rican oranges case. He is reviewing the history of the country’s expansion, and he spends page after page examining the legal framework. He looks at the Constitution and its amendments, along with various treaties and statutes. Legally speaking, how has the country brought in new states and territories? His attention to this question is scrupulous and stultifying. Eventually, he turns to the case law and concedes, “The decisions of this court upon this subject have not been altogether harmonious.”
Although, let’s not be coy: this is about power, not just textual interpretation—power braided of words and violence. The words unleash the violence, American hoses pressing down on Haitians, washing them into the hands of military assassins. The Supreme Court said this was legitimate; the border put the Coast Guard beyond law. We used law to escape law. I want to ask how we can make sense of this, though I also don’t want to ask. There is a way to make sense, but that sense comes with its own brutality and silences.
It’s been more than a year since Charles Schumer announced the bipartisan immigration reform proposal. The Senate passed a bill, but nothing is happening in the House of Representatives; border security is a priority for Republicans, we hear. It’s important to Democrats, too, but neither party means border security for people who aren’t us.
I can’t imagine that Crow Dog, on his way to New York City to perform his Indianness, believed that the borders of the United States had provided him national security, or much security at all. And what about the Uighurs, who’d escaped persecution in China and initially had seen the American troops as liberators? “We were happy when we were handed over to the Americans,” Abu Bakker Qassim told the BBC in 2012. “They usually help Uighurs.” This time the American government didn’t help. It banished the Uighurs to a dismal detention camp on Guantánamo and then cast them out to Albania, Palau, and other places they had no reason to know anything about. The border didn’t protect them at all. It’s not “high-mindedness” to say that border security—or the meaning of the border itself—is a matter of perspective. It’s nothing so abstract.
The border isn’t a place. It’s a tool we put to use. As I write, the border is on the move, doing its work. Border Patrol agents and state troopers are roaming highways, demanding to see people’s papers, and the border is moving with them. The agents are sorting who belongs from who doesn’t. But the border doesn’t just divide us. It also connects us in ways that can be brutal, like a torturer’s line of electricity. It ties us to the Uighurs we confined in Guantánamo and the Haitians we repatriated. When I interviewed Salvadorans in Seattle, I saw the weight of the border on them: we can do what we want in your country, but you don’t belong here. The denial of a relationship is part of the relationship. So, it makes sense that we’d want to think the border is elsewhere, confined to a distant desert. We can adorn this fantasy with troops and electronic surveillance and place faith in it. But I doubt that will give us border security. Even in our most vivid imagination, we have no idea what a secure border would look like. We’ve never seen such a thing.