Friday, October 28, 2005

Criminalizing the Political Lie

As I've noted elsewhere on this blog, I live in Encinal, a town in what we call Deep South Texas, just about 40 miles north of the Mexican border. I work in Laredo, which is right on the border. Each night I am required to stop at a permanent U.S. Border Patrol checkpoint on my way home from work. Dogs sniff at my car, agents knocking on it here and there, giving me officious, dirty glances. I'll be the first to admit that mine is a red car, a Volkswagen, and that I am an Anglo with a longish goatee and little round glasses. They peer in the windows, wielding little flashlights. They leer suspiciously at my broken door panel. Usually, I have been at work for ten or twelve hours when I am greeted by these stalwart defenders of our borders. I suspect they have been sworn to uphold the Constitution, as I had to do before I could conduct the Census of Agriculture by telephone many years ago. But I have no reason to believe that any of the agents who are regularly rotated through the checkpoint on I-35 north of Laredo have any idea what the Constitution even is.

Anyway: last night. I was particularly grouchy, and agent Shook wanted to know where I was born. I do not like answering this question, and do not feel that undocumented migrants and narcotics present an immediate enough threat to my country to warrant the requirement that I stop to answer the question on my way home from work. So I told him I wasn't going to answer.

"Sir," he explained, "You say you're a U.S. Citizen. This is just one of the ways we can find out whether or not that's true."

"But you're not going to check, right?" I asked. "I mean, can't I just make something up? How about I say 'Toolafalls, Mississippi'? Would that do?"

"Well, sir," he said, darkly, "that would be a lie" (it isn't clear how he knew this) "and it would be a crime."

I backed down, and did not claim to be born in a town I only know from Flannery O'Connor's "The Life You Save May Be Your Own."

To my surprise, the agent did not conduct a punitive search of my car, as had happened the last time I refused to answer the question about my place of birth (Frederick, Maryland, by the way). Instead he had the dog-handling agent circle the car another two or three times. I stared ahead, nervous, irritated. And then he told me I could go. He told me to "have a good evening."

My resistance (which I acknowledge as the tiniest of symbolic gestures, scary as it is for me personally)--my plan to lie in response to the Border Patrol--is, of course, a political gesture, one that reflects my conviction that theirs is a nightly unconstitutional, unjustified infringement upon my privacy.

However, I chose not to lie to agent Shook, after he told me it would be a crime. Also: it has been clearly explained to me by other Border Patrol agents that the question of origin is really only about confirming the respondent's command of English. Even knowing this, I opted not to lie. Even knowing all of this and believing deeply that the Border Patrol checkpoint is wrong, that it is the wrong solution to the wrong idea of what our problems are, I chose not to lie, not even a little.

Had I lied--knowing such a lie were a crime--I think I'd be prepared to face conviction for that crime, it would have to be part of my consideration in lying. I cannot imagine arguing that, because my lie was politically motivated--even in a context in which the lie means to subvert the authority of a question that is unconcerned with the truth of the response--that my conviction for the crime of lying could be understood as a "criminalization of politics."


Anonymous said...

In response to Mr. "Barba de Chiva", or goatee...

You may not realize it, sir, but many of my fellow Border Patrol Agents, here in Laredo, Texas, are more highly educated than the knuckle-draggers you expect us to be.

I realize you are an English professor. I do not know if you are tenured or not at TAMIU. This is quite a long drive from Maryland, and those you teach here in Laredo are in dire need of proper English grammar.

Myself, I have spoken to you on several occasions, as you drive North to Encinal. In the red VW; as a passenger in a silver VW; in a small black convertible; an old Ford; and, and older tan Chevy, as well. I have a fantastic memory and recall to boot... I am intelligent, educated, have several degrees, many certificates. Yes, I (and my compatriots) have sworn to uphold the U.S. Constitution (to a little further extent than a telephonic interview for the Department of Agriculture). I also have instructed Arrest, Search and Seizure classes in a Law Enforcement forum, and for the FBI.

Of course, you do realize that the Border Patrol is the ONLY job in the Federal Government where it is a requirement to learn a foreign language as a condition of employment. For a few that language is English; for the majority that language is Spanish. If you fail at the Academy, your fired; then, there is Post-Academy, with two spoken/oral interview boards, where if you fail, your fired.

As yo may be able to tell from this "tone", I have taken a little offense to your suggestions. The implication that the U.S. Border Patrol Checkpoint is an un-Constitutional "invasion of privacy" is rather absurd. "Privacy" is not mentioned as a Constitutional right anywhere in the Bill of Rights.

Try: United States v Martinez-Fuerte (428 US 543 - 1973); United States v Flores-Gonzalez (; or, United States v. Arvizu ( These establish the legality of U.S. Border Patrol Checkpoint. Several others are also in place.

In addition, there is a whole sleu of case-law regarding the use of canines, for "free air sniffs" as less than intrusive search to establish PROBABLE CAUSE for further search for contraband and the presence of hidden persons.

Just a little FYI, sir.

Roger D. Parish said...

anonymous said: those you teach here in Laredo are in dire need of proper English grammar.

As are those who defend our borders. To wit: you're not your and slew not sleu

Neddie said...
This comment has been removed by the author.
Bobby Lightfoot said...

I smoke marijuana.

Anonymous said...

Typical of the treasonous anti-Americanism we have come to expect from Bush's lackeys. Why do you hate freedom so much, Mr. Border Patrol Guy? Why do you hate the Constitution and the Bill of Rights you pretended to swear to uphold? Why do you despise citizens of the USA, spy on them, insult them, and threaten them? What is wrong with you that you became such a despicable slave of tyranny and enemy of the working man?

Rudd-O said...

To Border Patrol Guy:

Even I, not an U.S. resident or citizen, am aware that the U.S. Constitution, while not explicitly saying that you have a right to privacy, implicitly acknowledges it in its banning of unreasonable search and seizure (amendment 4 or 5? I can't recall).

Not only that, but there's extensive case law around the subject.

And the fact that the Constitution does not explicitly grant several rights doesn't mean that people don't have them. In fact, the Bill of Rights was heavily antagonized by several Founding Fathers, exactly because they (accurately) fathomed that the government might in the future attempt to "seize" individual rights not explicitly recognized in the Bill of Rights, arguing that omission of a right means that the people don't have that right in question.

Which is exactly what is happening right now. Guess Hamilton wasn't so crazy after all.

Anonymous said...

I have to say that I side with border patrol on this one. All day, they have to do the same stuff over and over, and the author complains about a long day. For all he knows, the guard had had a long one to. The author did have a moral right to know about why he was being questioned ect. The agent was described as "grouchy", so it seems to me likeley he was tired or anoyed. Nonetheless, the agent still acted cordialy. When the author is mistified by how the agent knew what he said was a lie: Perhaps it was because the author had said it suspiciously ect. And it was only a statement, not an arrest. Then, rather than conduct the search, the guard lets him on his way. And the rest of the author's time in the US is spent mostly unacosted, with far more rights and protection under the law than in other countries. And, were it not for such guards, then there would most likeley be more crime and a corresponding rise in the powers of the state if an influx in immagration was allowed. And again, the border patrol guard seem to have a far better perspective than author. Even though he knows who the guy is, and could get him charged for lying, he doesn't, because (I personaly believe) that he can see the difference between a problem (drugs going over the border) and a nuisance (a small minded english proffesor).

And to those who have derided the guard's post, you have blown the issue way, way out of proportion. The guard has obviously been personaly insulted, but still he didn't search the car, as I already said. And, as a border guard, they seem to be very civilised indeed, because until they let a person through, he is not under the US constitution. But then again I'm no expert, so I could be wrong. So mabey you should all quit whining and find some real problems. This is a problem in itself, because until you journey outside the US, one will not encounter many real problems. I commend the author here, for helping the Mexicans.

mnemosyne said...

The Border Patrol Checkpoint referenced above is located inside the United States, not at an international border. The international border between the USA and Mexico is in the middle of the Rio Grande river. Presently the checkpoint is a permanent station about 30 miles north of that international line. Every vehicle traveling north from Laredo, Texas on I-35 must stop, answer some questions and often have the vehicle sniffed by a dog.

Neddie said...

Anonymous #2 (not the BP agent).

Note a couple of things, here.

1) This post the BP agent is responding to is over 2 years old. He dropped his comment two evenings ago.

2) The listing of what cars Barba de Chiva drives is bloody menacing.

3) The mention of having instructed "Arrest, Search and Seizure classes" is even more menacing.

4) The officer's interpretation of the Constitution's right to privacy is argumentative at best, and is in most legal interpretations diametrically wrong. To have an officer of the US Government, acting for all we know in his official capacity, Google your two-year-old post, identify you by the cars you drive, brag about his Arrest, Search and Seizure mojo, and tell you that you have no right to privacy is goddamned disgraceful.

"Find some real problems"? Oh, I think we have.

barba de chiva said...

Anonymous #2:

Did I lie? When? To whom?

In case Mnemosyne wasn't clear, let me reiterate: I am several miles inside the United States when I leave work. I drive north for twenty more miles, and then I am made to stop, along with every other driver on the road, at a checkpoint well inside the United States. I spend all of every regular day in the United States. It's just that, between my office and my home, I have to speak to a man with a gun who, as often as not, asks me questions that most of you don't have to answer on the way home from work.

That my answers to those questions--like where I live and whose car I'm driving--have been made public by one of those officials strikes me as a serious ethical and professional transgression.

If a nuisance is all I can be, I'm still in pretty good company.

Thanks, everyone, for the comments on this well-aged post--and to Neddie and others, for posts of their own.

Son of Slam said...


Don't forget the 9th amendment that states

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Which means "Just because it isn't listed here, doesn't mean it doesn't exist."

The "No right to privacy in the constitution" people disgust me.

Anonymous said...

Aw, Border Patrol guy is a creepy.

I'm posting as anon so other creepy border patrol guys don't stalk me for making a comment.

Anonymous said...

The BP doesn't have an email address, but the inquiry number is (202) 354-1000. I'd sugest that Mr Border Patrol Guy has violated a couple of regulations by using his information to attempt to intimidate someone, and that his identity is only two subpoenas (at most) away.

I'd also suggest that the local media might have some interest in this, they maybe even to go so far as to identify Mr Border Patrol Guy to his friends, neighbours and general public as the bully he is.

And if you, Mr Border Patrol Guy, have such a wonderful memory then why do you even bother stopping someone who you know is legitimate for more than a cursory wave-through? Is your goal in life to have your obituary read "He annoyed lots of people"? Your legacy is to be known as the petty tyrant who tried to make people miserable?

Oh, and get off your high horse, I've done similar work. No one ever complained, because I was professional, courteous and thorough. You, apparently, have only mastered (I give the benefit of the doubt) the last one.

somebody said...

dear mr. chiva,

i find the harrassing comments directed at you by a federal agent to be quite disturbing. you should contact blogger and see if you can get his ip address. after doing so you may want to contact the aclu or the border patrol's internal services.

Ed Darrell said...

The word "privacy" does not appear anywhere in the Constitution, but the right to privacy is an unalienable right (see the Declaration) which the Constitution does not delegate to the government and which, according to James Madison's reading, remains securely the prize of the citizen, and not the government.

And, by the way, any reading of United States v Martinez-Fuerte supports the fact that there is a right of privacy in the Constitution. The decision was that the intrusion on privacy in that case was generally small, compared to the need to stop smuggling of illegal aliens. In short, the Court ruled that the action does indeed infringe on the right of privacy, but not enough to outweigh the needs of the state in doing the inspections. For example, the Court wrote this: "It is agreed that checkpoint stops are 'seizures' within the meaning of the Fourth Amendment." It's difficult to make it much more clear.

That in no way can be construed as justification for rudeness, nor for constant stops of a daily visitor (if the guard can get and remember those details, can't he use that memory to wave the guy through the checkpoint?).

In any case, if one wishes to determine whether there is a right to privacy in the Constitution, any half-way reasonable search of the issue on would turn up the case of Griswold v. Connecticut, which held that the Constitution does have a right to privacy inherent in it. You can read it here:

Ed Darrell said...

Oh, by the way, these searches occur well within the borders of the U.S. -- and they are definitely covered by the Constitution.

Murky Thoughts said...

It's hard to know for sure, but BP guy/gal "anonymous" just seems ticked off and seeking to cause BdC a little shame and chagrin, not fear. Sure it's political, but the guy or gal doesn't have to love your freedom to slander and bad mouth his or her profession, nor refrain from addressing and challenging evidence and argument BdC has seemingly offered in support of the badmouthing. Who's being insufficiently loving of who else's Constitutional freedoms here? I didn't think the evidence as stated supported BdC's point either. Police, checkpoint people, petty officials and professors around the world are liable to take unseemly relish in their responsibility and role as enforcers and occasionally make bad judgments. But I don't read either of these as BdC's complaint. It sounds like his actual issue is his commute, where the border checkpoints have been placed and the seeming absence of provision to speed the transit of regular commuters like himself who aren't crossing the border but are forced to go through the checkpoint. I guess there's also some plausibly reasonable griping of the kind of questions everyone is expected to answer, which an English professor might have special license to take issue with. It's appropriate that a screener has interests that are at odds with those of individuals seeking entry during the screening procedure, but there's way to be a lot more frank about it than has been our custom in this country regarding all kinds of procedures and rules down to the public schools. Makes me writhe all the time. But I think this is about culture more than policy or law. We could probably have a lot more productive conversations about such stuff and about all kinds policies if it weren't for everybody immediately escalating the issue to their rights as a customer or a parent or a citizen.

barba de chiva said...

Thanks, MT. I don't disagree, entirely. I don't mean to escalate the checkpoint into a discussion of my (personal) rights; when I talk about the checkpoint in general I mean for it to pertain to a discussion about rights and security. While I agree with you (that "escalation" of the terms of the discussion is unproductive), I flinch, a bit (mostly out of respect, I admit) at your insinuation of some blurring of "customer" with "citizen."

And let me clarify: When I complain about the checkpoint, I'm not asking for any special treatment, for a commuter lane. I'm asking that we re-think the whole goddamned thing, that we not put agents in the position of telling people that if they have nothing to hide, they have nothing to worry about. Or at the very least, that we talk about the bigger solutions to the problems that result in the symptoms (illegal immigration, drug trafficking) that the checkpoint fails, despite the best intentions, to address.

The original post was about Scooter Libby. I've never been any good at allegory