Legal and Policy Issues Require Detailed Study

By Jeffrey F. Addicott, Director, Center for Terrorism Law

There can be little doubt that the so-called “War on Terror” has caused great stress to “civil liberties” over the past nine years. Without question, certain basic privacy rights of the individual have given way to ever increasing security measures designed to protect the American people from the reality of global terrorism. Nowhere is this concern more loudly raised than in discussions of border security, particularly along the U.S.-Mexico international border. While the matter of real border security is often portrayed as a necessary imperative to protect the public from attacks by al-Qa’eda and other radical Islamic groups, the issue of securing the border goes far beyond concerns about international terrorism. Indeed, in tandem with terrorism, meaningful discussions regarding border security must include other homeland security imperatives related to transnational drug crime, human smuggling, and illegal alien immigration.

First, America’s borders are not secure. With 5,525 miles of border with Canada, 1,989 miles of border with Mexico, and a maritime border of 95,000 miles of shoreline, this is in large part a function of the magnitude of the geography involved. Add to the shear length of the border the fact that only a tiny fraction of the millions of people (400+ million), cars (130+ million), trucks (12+ million), rail freight cars (2+ million), and maritime containers (8+ million) that enter the United States (at over 3,700 terminals and 301 ports of entry) are ever subjected to inspection of any kind and the problem of border security seems beyond resolution. Even in light of the above physical assessment, the functional matter of border security presents a difficult, but not insurmountable, task. In fact, the real and central challenge that the United States faces revolves around legal and policy debates about how to realistically secure the border under a democratically based rule of law — a rule of law that strikes an acceptable balance between increased security and civil liberties. Certainly, the protection of human rights and civil liberties is a greater obligation for the government in times of crisis than in times of peace. On the one hand, while a fundamental obligation of the State is to protect its citizens from external as well as internal threats to person and property, civil liberties given up in the name of security are often hard to regain once the security threat passes. In many instances, they are irrevocably lost. On the other hand, an unsecured border represents a threat that is growing in intensity, whether viewed from the perspective of terrorism, crime, or illegal immigration. Clearly, a coherent and workable solution must be developed and then enacted with alacrity. The sticking point, of course, is precisely where the line should be drawn between increased security needs and civil liberties.

A central hallmark of any free people is the ability to debate issues and to petition the government as it makes policy and law. There is no question that the issue of border security covers matters that span across a variety of fundamental legal concerns. Not only does a majority of the American people express great dissatisfaction with Federal and State government responses to border security, there appears to be little effort to pull all of the applicable information together into a single reference point for study and assessment. A much needed step forward in this process would be to develop a detailed “Legal & Policy Border Security Bench Book,” which would identify, address, and analyze specific categories of legal and policy issues associated with border security to include: international terrorism, narco-terrorism, human trafficking, drug trafficking, and illegal alien intrusion on the U.S. borders (Mexico and Canada). At a minimum, the bench book would serve as an invaluable resource for those operating in the sphere of border security. The study would enhance organizational preparedness of local, State, and Federal law enforcement agencies, first responders, the U.S. military, and the general public by detailing the interaction of existing laws and regulations within a framework that encompasses multi-level legal and technology compliance requirements from Federal, State, local, and international perspectives. In this light, the Center for Terrorism Law, St. Mary’s University School of Law, San Antonio, Texas, is working in conjunction with other academic institutions to explore the viability of conducting such a study with additional hopes that it will be able to offer and conduct tailored training courses and seminars to law enforcement organizations (and National Guard) using the bench book as the central training/ discussion focus about technological/counter-terrorism tactics, legal concerns, and conflict management. Balancing the rights of individuals with the need for increased security requires that enforcement officers have a clear understanding of the legal implications of their actions, which can affect their exposure to criminal, civil, and administrative liabilities. Additionally, the effort will significantly improve the legal and operational understanding of contemporary border issues and provide those charged with protecting the border with the necessary tools to overcome barriers to effectiveness.

In conjunction with nationally recognized subject-matter experts in the public and private sector, who will work closely with select academic institutions to delineate the required informational product, the “Legal & Policy Border Security Bench Book” would identify areas of conflict and agreement across the full spectrum of individualized legal issues, i.e., privacy concerns, compliance issues, and government/ business relationships. Specific categories of study would include: (1) surveillance technology; (2) various Federal authorities regarding immigration administration and enforcement; (3) constitutionality of border searches; (4) integrated systems’ vulnerabilities; (5) civilian patrols; (6) border landholder’s property rights; (7) enforcement of current domestic laws; (8) isolation and quarantine issues; (9) international treaty obligations; (10) DoD activities; (11) criminal law enforcement; and (12) privacy concerns. Not only is there inconsistency in Federal legislation and regulations, but a growing volume of State level developments in this area will certainly have various consequences which must be addressed both within and across State and international boundaries. Furthermore, the development of judicial case law is a topic that requires a detailed analysis in order to determine how broadly judicial decisions will impact on specific areas of concern.

In conclusion, the government’s goal is to implement border security that does not impede the efficient movement of legitimate commerce, citizens, and authorized visitors while deterring, detecting, and denying unwanted goods and people. South Texas in particular constitutes a unique venue where homeland security and criminal justice professionals are faced with numerous law enforcement problems — the region boasts the largest U.S.-Mexico inland port and millions of people, cars, commercial trucks, and trains enter and exit the United States annually through a variety of entry points, e.g., (on the Texas border) El Paso, Brownsville, and Laredo. Federal prosecution of drug and immigration offenses has risen substantially over the past decade. Apart from the practical uses outlined above, the scope and breadth of the envisioned study will go far beyond serving government professionals exclusively, or even serving as a needed depository of knowledge for security and immigration issues. The real thrust of the study will be to energize policy makers, government leaders, and law enforcement officials to collaborate and test the efficacy of proposed laws, regulations, and procedures that safeguard the Nation under a rule of law that correctly balances civil liberties and security.

*Jeffrey F. Addicott is a Distinguished Professor of Law and Director of the Center for Terrorism Law, St. Mary’s University School of Law. B.A. (with honors), University of Maryland; J.D.; University of Alabama School of Law; LL.M., The Judge Advocate General’s Legal Center and School; LL.M. (1992) and S.J.D. (1994), University of Virginia School of Law. Additional reading on this topic can be found in Addicott, Terrorism Law: Materials, Cases, Comments, 6th Edition (2011)

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