January 2017

The Constitution-Free Zone

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New York and Washington, D.C. don't like to think of themselves as border towns, but we in Miami have known for a long, long time that as a border town, there is a Constitution-free zone at the Miami International Airport. What New York and D.C. are just finding out--it apparently comes as a shock to most--we have known for a long, long time. 

The existence of Constitution-free zone is based on the concept that the United States Constitution only binds the government's hands within its own borders. Since an international airport is the "functional equivalent of a border" (dozens of cases offer up this language) the Sixth Amendment right to Counsel, the Fourth Amendment right to be free from search and the Fifth Amendment right to silence simply do not apply. 

If a traveler is flagged for secondary inspection at the South Florida airports, he is sent to a room to await further investigation and interrogation. The fact that his lawyer has requested access and is just one floor away is meaningless: the lawyer will not be permitted entry.

This is a long-standing nationwide policy that was threatened over the weekend when judges in New York and Virginia ordered access. A New Jersey senator tried to get the DHS to obey the court order in Washington but was courteously ignored as well. Some pundits suggested that the judges order the U.S. Marshals to use force to give effect to the order (that ain't gonna happen). 

So, what was DHS up to? First, they had an Executive Order from the president. This functions as an effective shield against any claim that they were in violation of a court order. You cannot expect federal employees to decide which order to follow. The president's order was applicable nationwide; the two judges' orders applied only to the territory within their jurisdiction; that is, the Eastern District of New York and the Eastern District of Virginia.

The DHS could well ignore the order on the basis of the presidential executive order and litigate the two orders. At some point, thank you
Marbury v. Madison, the higher courts would decide the issue. It takes four or more years for a case to work its way up to the Supreme Court and that court only takes 150 cases per year.

So there is no guarantee that the matter would be heard and meanwhile we would be stuck with different rules applying in different federal appellate districts. 

DHS would also point out that the litigators and bankruptcy lawyers who rained down on Dulles Airport failed to have proper powers of attorney on file--indeed, most did not even know the names of their "clients," individuals who may well not have been interested in receiving legal representation or getting embroiled in any way in litigation--all the travelers wanted was to be left alone. 

The agents in these circumstances only have to ask the detainee, "Is Dewey Cheatham your lawyer?" to get the response of "who's Dewey Cheatham?" The supervisor will then tell you, "sorry, he's not your client."

This isn't America, you say, how can these things happen? The answer is that they have been happening for years, but despite the pleas from people like (humbly) yours truly that Constitution-free zones are antithetical to the Republic, few complained until their ox was gored--in this case by President Trump.

The money laundering laws were offered as an important tool to be used against drug traffickers. "Someday they will be used against ordinary citizens," some of us said in protest. No matter: the laws were passed and now money laundering prosecutions far exceed the number of available drug lords. 

Think that federal prisoners have an unfettered right to see their lawyer? Isn't that Gideon's Trumpet stuff? Think again. They have a right to counsel, and may see (vetted) counsel on such terms as meet the security requirement of the federal Bureau of Prisons or any private for-profit jail the federal prisoner happens to be incarcerated in. The request begins with a letter sent through the U.S. Postal Service. Sorry, e-mail requests are not allowed. 

Constitution-free Zones are
Antithetical to the Republic

Perhaps because the volunteer jurisconsults are not familiar with this area, they do not know the secret of getting their client out from DHS clutches. There is only one sure way that I know of, and it doesn't apply to everyone.

If your client has a serious medical condition, you can ask to speak to the duty supervisor. Tell him that you believe your client is in secondary and has X condition and no access to medication. That if the medication is not timely received, there is a risk of medical complications or death. 

Since DHS is holding the individual, they have the obligation of insuring proper medical care. Failure to do so is tortious behavior. The last thing a federal employee wants or needs is to be on the receiving end of a federal tort or civil rights lawsuit. Federal employees know that the Department of Justice will often fail to protect their interests, since the DoJ's main client is the government itself and not an individual agent. In fact, the agents are often told to get their own attorney. They ain't cheap.

Now you know why CIA officers have to take up collections to protect their own. Remember
Bivens v. Six Unknown Federal Agents? Of course you do. (If you're a federal employee reading this and don't believe me, contact your union. There are unions in the federal government you know. You'll get an earful.) 

Heart patients are particularly at risk. DHS immigration detention facilities are rarely staffed with medical personnel or contain adequate treatment facilities. More likely than not--again, only if true--the traveler will be released on an immigration bond, which is usually set in the amount of $10,000. Corporate surety, of course. The premium is $1000 and if the traveler has family in the U.S., meeting the securitization requirements should not be that difficult. 
For anyone else? You might easily wait four years before the courts finally sort it out. 

So, unless your client is a heart patient, welcome to the Constitution-free zone. There may be one in your town.