Hacker News Reader

What fifth amendment rights? Was someone asking you to testify against yourself at trial?

And CBP does have the right to ask who you are and where you're going when you cross the border. It is their business, and has been since the 18th century.

EDIT: I should clarify because I'm being somewhat glib. First, 4th amendment does not apply to routine border searches, and it was the First Congress, containing many of the framers, that instituted routine border searches: http://blog.cybersecuritylaw.us/2013/09/23/david-house-dhs-a....

Second, while the Supreme Court has not ruled on the issue, the various circuits have held that 5th amendment does apply, but Miranda warnings are not required: http://fourthamendment.com/blog/index.php?blog=1&title=e_d_n....

These are both rooted in the long-standing right of sovereign entities to defend their borders.

Third, I'm not aware of any Supreme Court case that says you can't be compelled to answer questions at the border. Currently, there is simply no law compelling you to answer questions, but it's not clear such a law would be unconstitutional if it existed. So there is nothing wrong with CBP asking, and nothing wrong with you refusing to answer, and nothing wrong with CBP giving you extra scrutiny, within the limits of the 4th amendment, for refusing to answer the questions.

Fourth, I'm in the camp that thinks Miranda shouldn't even apply to questioning at the border. See: http://www.volokh.com/2013/06/17/do-you-have-a-right-to-rema.... The 5th amendment's text is simple: "No person... shall be compelled in any criminal case to be a witness against himself." The historical practice and plain meaning of this text was, before the 1960's, that you couldn't force a defendant to testify against himself in a criminal proceeding. This was a specific response to the practice of the Star Chamber in England. It's a pretty big stretch to say that this should limit the police's ability to ask you questions, especially at the border where the state's interest in security is relatively stronger.

Fifth amendment rights extend beyond the courtroom. I am not legally obligated to make any statements to law enforcement about my own activities. Indeed, border control points are simply yet another instance in which you should "never talk to the police."

https://www.youtube.com/watch?v=6wXkI4t7nuc

You're being recorded, both audio and video, from the moment you enter the building. Making a false statement, even accidentally, is a serious crime. They, of course, are allowed to lie as much as they wish with no repercussions. Ask any lawyer: making any voluntary statements to the police is a bad idea under any circumstances.

Furthermore, my travel within or without the United States is no business of the government's, as evidenced by the fact that there's no law requiring me to provide it to them. Every time this has happened, I have been allowed in to the US. Every time.

The troubling part is that this is really just a demonstration of what the police would do if Terry v. Ohio or the 5th Amendment weren't in place.

They see absolutely no irony in harassing an American, on American soil, under the banner of "protecting America".

Being late, I can cope with. The fact that large federal law enforcement organizations like CBP fundamentally don't get why we have basic rights is the truly scary part.

Sounds like a plan, scale it up! That would surely exact some change in a non-geological timespan.

You're right, it's a total waste of time. Because it's unlikely to ever effect change, we should simply bend to the will of thugs and turn over all the information they ask for: employment data, addresses of friends, travel plans both domestically and abroad, complete contents of our mobile phones (including all text message history, image history, location history, voice notes, emails), et cetera. Volunteering this information to cops is clearly the better choice than exercising our rights because the exercise of rights won't actually get cops to stop being dicks.

PS: You have to count to 1 on the way to 350 million.

I don't think that was sarcasm. I think jacquesm is on your side.

No, I actually completely agree with you, in fact I stopped going to the US for exactly the reasons you list.

note to self: find a way to express lack of sarcasm in text.

"/sarc"

To be fair, as a non-US citizen I think it's fair for the US government to ask you what exactly you plan to do in their country.

To be _fair_, the location of a person's birth should not determine the rights they are entitled to.

Sure, they can ask. They ask citizens. The difference is that citizens get fifth amendment protections and can politely refuse to answer.

If you're a non-citizen coming to visit, refusal means deportation. It's simply racism based on where someone was born, discriminating against people on a trait that they have no control over.

> To be _fair_, the location of a person's birth should not determine the rights they are entitled to.

So we've gone from discussing civil liberties to the abstract idea of a Nation State?

Either way it's not always racism. I'm not American but I'm as WASPy as they come. If I followed your pattern at the US border they'd never let me in, and that is their right.

It's not racism at all, it's territorialism. Rights don't exist in the state of nature. Rights are just agreements between groups of people to take certain things that they have the ability to do in the state of nature off the table. If you're not part of the group, you're not party to the agreement.

Legal rights don't exist, but natural & human rights do. Out of curiosity, are you in favor (in principle) of world federalism? That would eliminate the international state of nature that we have today.

"Legal rights don't exist, but natural and human rights do."

Given that existence of legal rights can be proven empirically [1], whereas existence of natural and human rights is a philosophical quagmire yet to be resolved after thousands of years of inquiry, I'd argue that your statement is false. Well, at least, as false as anything can be outside of a purely axiomatic system.

[1]: Again, as far as such things can be done. E.g., we could probably come to something like an agreement that the Bill of Rights exists and that it describes a set of ostensibly legally guaranteed rights.

Oh, I meant legal rights in the state of nature, the context rayiner was describing - he was the one that said they don't exist therein and I agreed. Natural and human rights function like morals though, they describe what should happen, as opposed to legal rights which describe what will happen, at least given a competent judicial system. Morals exist, right?

"Morals" do exist, in the sense that they are observable states of mind in individual people. You can set up an experiment where you leave a $20 bill on the table, and observe that people don't take it, and call the chemical process in peoples' brains that causes them to act that way "morals."

Sometimes, people with similar moral opinions come together and agree to enforce entitlements consistent with that opinion. These are called "rights." While morals can be demonstrated in the state of nature, "rights" cannot be. There are no "rights" without agreements between people, either explicit or tacit.

I didn't really mean to argue about rights, or maybe I did and I just didn't realize. What you are calling "rights" is properly qualified as "legal rights". I am not suggesting there are legal rights in the state of nature, I am just pointing out that there is an entirely different category of rights and that "rights" refers to both categories. This other category of rights, which I'll call natural/human rights, corresponds to morals, whereas the legal rights category corresponds to laws. Typically laws and thus legal rights have some basis in agreed upon natural/human rights. See Wikipedia, which also lumps human rights in with natural rights:

https://en.wikipedia.org/wiki/Natural_and_legal_rights

Since I'm pretty sure you've encountered the terms natural rights and human rights before, and that you understand that they specify morals without being legal rights, and that we don't basically disagree about how things work, nor do we even disagree philosophically on a wide variety of issues (perhaps importantly that moral absolutism is terrible), I was more curious about whether you think world federalism is a good idea...

Basically in agreement with rayiner's sibling comment, I'd say morals don't exist in the physical/concrete sense that gravity exists, but they do exist in the cultural/behavioral sense that beauty exists. For them to exist more concretely requires some sort of codification and system for enforcement, at which point they effectively become legal rights. Also, in the absence of a specific objective, the concepts "should" and "should not" aren't useful. If we are acting towards different objectives, then our "shoulds" and "should nots" won't necessarily align.

To rephrase this, the sort of absolute existence which you seem to be implying for morals and natural rights is only obtainable within the framework of an axiomatic system. And, the process of codifying one's morals within an actionable axiomatic system transforms them into legal rights.

I never said anything about absolutism, I believe moral relativism is healthy. I disagree that should and should not are useless concepts, because every moral expresses a should or a should not sentiment. Having personal values means you have a personal code of behavior, but it isn't enshrined in law, it's just opinions about how you personally should behave. I agree about the transformation of natural/human rights into legal rights through codification and use of force. Basically, I believe we agree on all the major issues here, except I seem to have communicated some kind of belief in moral absolutism which I hope I have dispelled!

I said should and should not are useless "in the absence of a specific objective". But, as you suggest, they are useful in the context of an objective, e.g. I should not push old ladies into heavy traffic (implicitly: because I prefer not to live in a world where old-lady-traffic-pushing is a commonly accepted pastime and I believe that not indulging in old-lady-traffic-pushing makes such a world more likely to exist in the future, given some assumptions about the dynamics of social systems).

So, I agree that morals express should and should not sentiments. I also agree that individuals can hold morals, in the sense of personal codes of behavior. However, my original point of contention was whether or not natural and human rights exist in the state of nature. A discussion of morals ensued because you implied that an acceptance of the existence of morals was somehow related to an acceptance of the existence of n/h rights.

Morals and n/h rights are fundamentally different in that morals are intra-personal, while rights are necessarily inter-personal. So, while I would accept that morals can exist, in the sense that individuals can desire particular states and derive codes of behavior for making these states more likely to occur, these sorts of morals are not the sort needed to make the functional similarity between morals and n/h rights that you previously suggested meaningful.

These form the key points of our disagreement: that morals act like n/h rights and that n/h rights exist. While you may not have intended to support absolutism, based on the way in which people typically discuss n/h rights, and based on the formal definitions of these terms that I've seen, I'd say that any support of n/h rights is implicitly support of absolutism.

Thanks for explaining, that was quite thorough. I don't understand the distinction between intrapersonal and interpersonal here. Are you essentially saying at least two people have to agree upon something before it's a right, either legal or n/h? But that can't be, because although you can take away my food, clothing, and shelter, you can't take away my belief that I have a human right to those things (i.e. I deserve them), regardless of whether or not anybody agrees with me. Or does it have to do with morals being about my behavior with respect to others, whereas n/h rights would be about others' behavior with respect to me (and others)?

I do understand that it's the absolutists who harp on about n/h rights, I'll try to be more careful about that in the future. It is somewhat absolutist of me to believe that everybody on the planet deserves food, clothing, and shelter in that it's a belief that applies universally, but I won't go so far as to say that you should adopt my beliefs simply because it's somehow incorrect for you to have other beliefs, nor do I expect that our laws will ever satisfy this ideal.

While I can't take away your belief in a human right to something, I can take that something (given sufficient capacity for force). Belief in n/h rights can exist independently of whether or not the rights exist, in the same way that belief in Odin can exist independently of Odin himself.

Though, through morally-guided action you can possibly cause the n/h rights which you believe in (but which don't exist) to be reified as legal rights. Now, given sufficient capacity for force, I may still subvert those rights, but through their codification they have nonetheless gained existence.

The second part of your second paragraph actually closely matches my stance. And, it's precisely the prevalence of (implicit) absolutists who continually frame arguments founded on the assumption that some n/h right or another exists that leads to my irritation when these terms are used (relatively) carelessly. Such arguments are fundamentally flawed and, yet, continue to dominate most discussions concerning politics and economics.

My claim is simply that much as force causes legal rights to exist, belief causes n/h rights to exist. Since you cannot take away my belief (except through brainwashing, but even then I can recover it), you cannot take away my n/h rights.

Or, might makes legally right, belief makes morally right.

It's interesting, because if you look back far enough you'll see I had the opposite argument with somebody else, where I was explaining that force was the only thing that caused legal rights to exist, and he was accusing me of immorality on that basis.

but you are replying to US citizens living abroad. I am pretty sure they are not exempt from paying taxes just because they do not live in the US.

I moved out of the US for this and many other reasons. Every time I visit I have to backup and wipe my phone and laptop before entering, as the courts have ruled that not only do you have zero fourth amendment protections at the border, but also that their ability to search extends to any data you happen to be carrying as well.

It takes me hours to reimage my laptop and restore my phone each time I visit the US. It sucks.

The 5th Amendment covers the right to not have to self-incriminate in the courtroom or anywhere. If you plead the 5th during a border search, however, it essentially means that you are likely to commit criminal activity but don't have to admit to it.

You are probably thinking more of the fourth amendment, which supposedly protects against unlawful search and seizure - including information about your whereabouts, etc.

Also, I probably wouldn't use a YouTube lawyer as my sole reference for doing that sort of thing, just FYI.

Unfortunately internet lawyers are about all we have left. Graduating lawyers are unemployed in record numbers, because folks now normally get all their legal advice online, for better or for worse.

AFAIK, graduate lawyers don't have jobs because there's more supply (more students), not less demand.

That's an effect, not a cause. There are no jobs because large law firms are not hiring. That's because customers are not going to them any more.

The legal industry changed after 2008, at least for larger firms. They started needing to compete on price for one thing, whereas they could largely charge what they liked before. Clients became very selective of what they chose to litigate very quickly, presumably based on cost/benefit analyses they had taken for granted in the past. That doesn't sound like a shift on the supply side to me.

Also, a substantial amount of legal employment used to be in doing things like document review that can now be handled by software. This could be seen to be augmenting the supply factor, since it automates what lawyers used to do.

IIRC, asserting your 5th amendment right does not mean that you have to have committed a crime, but I may just be confusing this with the ability to assert your right to remain silent without your silence being held against you.

A US Citizen can not be denied entry at the border by CBP. He can of course be interrogated by customs and agriculture.

In regards to that US Lawyer, read this always entertaining blog post [original site nomadlaw.com down for quite some time, quoted verbatim here: http://greyenigma.wordpress.com/2012/03/30/i-am-detained-by-...]

The right to creatively interpret the constitution?

It's unfortunate the link to the BYU law review article in a sibling comment is now marked "dead". Perhaps because the author first posted the link, then may have gone back to edit it.

I've only now glanced through the first few pages, but it spells out Fourth and Fifth Amendment rights at border crossings. Unfortunately, it is a review article, not case law, and in some instances appears to rely on dicta. Still, a worthwhile read.

EDIT: Original poster: "nemof". The review article, titled "Rights at United States Borders" was written by Jon Adams, who, judging by the brief bio on the title page, appears to be an experienced and qualified attorney.

The article is here: http://law2.byu.edu/jpl/papers/v19n2_Jon_Adams.pdf. It seems accurate, glancing through it. The material starting at page 354 describes the border search exception to the 4th amendment, and the material starting at page 369 describes how Miranda does not apply to routine questioning at the border.

> So there is nothing wrong with CBP asking, and nothing wrong with you refusing to answer, and nothing wrong with CBP giving you extra scrutiny, within the limits of the 4th amendment, for refusing to answer the questions.

> It's a pretty big stretch to say that this should limit the police's ability to ask you questions

I'm not talking about the fact that they ask, or that they search my stuff when I decline to answer.

I'm talking about the fact that they then lock me in a room for hours with no food or water, send the bus without me, threaten me with arrest and prosecution, lie to me claiming that I'm legally required to answer their questions, and finally refuse to call me a taxi or tell me the name of the city I was standing in ("I don't know" was the reply of the border guard after I'd asked him after I'd been told I was free to go. "You don't know the name of the city in which you work every day?" "Nope.")

It's simple disrespect and harassment.

> Fuck the police.

There's this theory in psychotherapy called transference. Basically if you experience crappy situations as a child in which you are effectively powerless, then in later years similar situations end up provoking the same feelings - you transfer the past onto the present.

https://en.wikipedia.org/wiki/Transference

I have no way to know if this is what's going on here, but in my own life, understanding things from this perspective has been a remarkably powerful tool for generating insight and change. I have had (and continue to have) no shortage of conflicts with authority in my life, including ridiculous abuse from the cops, but it did get significantly better once I started directing my anger at my parents, who for me were the original offenders.

Just an alternative perspective out of left field.

I'm guessing this is not applicable here, if what he says is true:

  Despite my opinions about the lot of them, I am calm, polite, professional, and courteous in my interactions with them.

I have a friend who for years said exactly the same things to me, and wondered why the cops were constantly harassing him. And then I got stopped in a traffic stop with him - as he speeds all the time - and he was shifty, dodgy, couldn't look the cop in the eye, and gave clipped in his verbal responses. He was "polite" but if I was the cop I'd've been beyond suspicious.

There was no reason to be shifty - he was clean, except for the speeding. But his general attitude towards the cop shone through like search light.

People's self perceptions may not be others perceptions. And your body language may be saying things your words aren't.

Yeah, I don't do that. I know I'm unimpeachable unless they make up something, and I know that they have to let me in. I look them in the eyes, I smile, I attempt to establish rapport.

The problem is that thugs with guns who are used to acting with impunity are enraged when people quietly, demurely, and professionally stand up to them.

It never ever happens because everyone has somewhere to be, a schedule to keep, and knows that they'll be on their way quickly if they "just answer a few harmless questions". They're cops with guns, after all.

Have you never had a customer service representative politely tell you to go fuck yourself?

When I was abused by my parents, it was never called for. As an adult, again and again I would create situations where I was obviously "in the right" so that I could get people to recreate that abuse and then subsequently feel and express the anger I had about it. For me, calmly provoking people is child's play, but I don't do it anymore.

Someone else (jcromartie) posted the following comment and it was downvoted to dead status. What is the reason? I was looking forward to replies/comments on this post.

> There are exceptions to the 4th and 5th at border crossings. The officials at international border crossings are permitted to ask for basic customs and immigration information, under the Commerce Clause. Any inquiry or search or declaration beyond establishing your legal right to enter the country, or what you are bringing with you, is indeed protected by the 4th and 5th.

Comments don't get downvoted to dead status. It's only if the poster was hellbanned prior to posting the comment that it will show as dead

Edit, ok while what I wrote was mostly right, I just looked at his commenting history, and it -looks- like he triggered the double posting protection by posting two comments after each other

There's a border court where you can appeal the idiotic decisions of any customs agent. The trick is finding out when they are in session, which is once a week at the Canada/US border but all points of entry have this same court but it is hardly advertised. I overturned numerous bans from entering the US, in fact the judge each time rubber stamped me in

@dobbsbob, I'd be very grateful if you could help me out.

My Aussie friend has suffered a similar (but not quite as degrading) experience at the border recently. She was unjustly deported because some custom agents (or their computer systems) suffer from multiple off-by-one errors and cannot properly compute a 90-day stay. I couldn't believe what happened -- and to an Australian tourist! I was ashamed of being an American.

Could you give me more information about this border court? Feel free to contact me at: one-hnpost AT reml DOT org

Thanks!

I'd love to see a site describing what your rights are while entering the US, both for citizens and non-citizens. Is there something like the "don't talk to police" video that describes what you're legally compelled to do or not do? Is there a guide covering how to secure your electronic devices, etc?

I'm confident enough of my rights when stopped by a cop inside the US, but from so many stories like this it really seems like we have no rights when crossing the border, citizen or not. If I knew what my rights actually were I'd feel better about asserting them.

What's a non-US citizen going to do if they're deported when attempting to enter the US?

By that point there's little point in trying to get justice, because international court cases are complicated and the tiny amount of money you get back is unlikely to be of much consolation.

...all because I politely exercise my fifth amendment rights.

What specifically does this mean in the context of a border crossing? It's not like you're under arrest there.

Do you mean that you tell the USCIS official that you aren't going to say anything about where you traveled or why? Or where you live and work in the country?

Some examples of what you say to them would help us understand better what is going on in your interactions with the border agents.

----

Edit: Just saw this: They were clearly just fucking with someone who had the nerve to tell them that his travel plans inside and outside of the US were and are "none of their business".

It's somewhat less surprising that you stand out in a negative way when you tell the border agent who's asking about your travel plans that those plans are "none of their business".

I've only done that once.

The longest detentions have been when I reply with "Respectfully, you have my passport and know my identity and citizenship, and I decline to participate in any further questioning."

Also, they asked a voluntary-response nosy question. Responding with "none of your business" is valid and professional. Stand out, sure, but whether it's "in a negative way" is open to interpretation. Please don't blame the victim for standing up for their rights.

I agree that there's no excuse for disrespect or unprofessionalism on the part of the USCIS agents.

And I suppose there may be no legal requirement for a person to disclose any information beyond "I'm a US Citizen returning to my home country". (I don't know this - I'm just assuming this, based on what you've said.)

Ultimately, of course, if you're a citizen, it's my understanding they have to let you back in. However, they also have broad discretion over investigating "suspicious" situations. Unfortunately, not wanting to say "anything" about your situation (why you were out of the country, where you went, etc) may stand out as "suspicious" to an agent who's accustomed to idle conversation about people's reasons for travel.

Indeed it raises suspicion, because it's anomalous. That's fine. Anything anomalous deserves additional attention.

The problem is, the search is simply an invasive powertrip—and not thorough. It's as if they're searching me just to let me know they can. They asked me "what've you got in HERE?" bunches of times while going through the various zippered pockets of my bags, but missed several. It wasn't a very good search.

Then, there's the threats of holding me in a cell for 72 hours, the threats of prosecution, the yelling, the physical intimidation, the verbal abuse ("you're only causing this trouble for yourself"), the massive delays (they sent the bus without me, stranding me several hours from the nearest airport). It's a fundamental disrespect that stems from their contempt for my unwillingness to follow their orders. They honestly wouldn't even tell me what city I was standing in, and kicked me out of the building onto a highway in a snowstorm in February in northern Vermont. I had no cell service and had to hitchhike to avoid getting frostbite.

I'm not complaining about receiving additional scrutiny, though I do personally believe that the 4th amendment protections should be intact even at the border. I'm complaining about straight up harassment and abuse.

so your bullshit provocation works, congratulations. what are you complaining about, your goal is achieved, smugness and superiority for you. you poor victim.

What provocation do you refer to?

Surely you can't mean exercising basic constitutional rights to silence when questioned by police.

Unfortunately, refusing to talk to the police makes it vastly more probable that you are involved in criminal activity. So, while you are perfectly within your rights, the police are doing their job to regard you with an extra level of suspicion. To do otherwise would be incompetence.