The right to remain silent at airports and borders
Our friend the attorney, frequent traveler, and blogger Paul Karl Lukacs has been generating lots of long-belated discussion (see links in the CBP category in his blog) in response to his report last January on the right of US citizens not to answer questions from US border inspectors, and why many lawyers, if consulted, would advise their clients not to answer such questions.
We highly recommend his latest, extremely cogent analysis of the law on Refusing To Answer Questions At U.S. Passport Control, and in particular his critique of the erroneous and misleading, but widespread, conflation of the Fourth Amendment issues with border searches and the Fifth Amendment issues with border interrogation, as well between between either and the absolute right of US citizens to enter the country (even without considering the near-absolute right of departure and return guaranteed by Article 12 of the International Covenant on Civil and Political Rights, a treaty ratified by and binding on the US).
While his analysis is limited to borders, the distinctions between search and interrogation, and between search and denial of passage, are equally significant at TSA checkpoints for domestic flights, as we have noted repeatedly. How the travelers can exercise their right to remain silent without TSA retaliation is one of the specific questions to which we are still waiting for answers from the TSA.
December 30th, 2010 at 12:08 pm
[...] used to have a Fifth Amendment that protected our right to remain silent. That would include when a common carrier, TSA agent, or rent-a-cop wants to know our name, date of [...]
January 21st, 2011 at 5:40 am
[...] we don’t yet know how he’ll be treated by the US on arrival. A US citizen has the right to remain silent at the border or airport when re-entering the country. But given their prior actions and repeated attempts to question Mr. [...]