Unconstitutional Searches and an Unaccountable Government

The U.S. border may be the next battleground for press freedom.

Last week, actor, filmmaker and press freedom advocate John Cusack called on Attorney General Eric Holder to “guarantee the safe return and safe passage of journalists who have exercised their rights under the First Amendment.” The detainment and intimidation of Guardian journalist Glenn Greenwald’s partner David Miranda at London’s Heathrow Airport prompted Cusack’s question.

Miranda was held for nine hours, without access to a lawyer, and without any explanation. This incident is part of a growing trend at international borders: no answers, no accountability.

Miranda had returned from a visit to documentary filmmaker Laura Poitras in Berlin. Earlier this year, Poitras traveled with Greenwald to meet with Edward Snowden in Hong Kong and has since been at the center of the reporting on the NSA’s surveillance programs.

Poitras herself has been detained, interrogated and searched more than 40 times at the U.S. border. Now she and Greenwald do most of their reporting abroad — in part, they say, because they don’t think they will be free to do this kind of work in the U.S.

In his Guardian Op-Ed, Cusack, who sits on the board of the Freedom of the Press Foundation with Greenwald, Poitras and myself, asks a critical question. What will happen when Greenwald and Poitras — both U.S. citizens — try to return home?

So far Cusack hasn’t gotten an answer from the attorney general — no surprise there, right?

Well, we think Cusack and the American people deserve a response. So Free Press offered to help. We launched a campaign to get Holder to ensure the safe passage of journalists, and in just over a day we’ve had 20,000 people join the call.

The new campaign is timely. Last week, WNYC’s On the Media reported that one of its journalists, Sarah Abdurrahman, was detained with her family at the U.S. border in Niagara Falls for six hours, without access to a lawyer. Border-patrol agents searched their electronics, questioned them about their religion and forced them to wait in extreme cold. Agents offered no explanation for the detention.

The only reason we know about her detention is because Abdurrahman is a journalist with a place to get her story out. And while her detainment at the border was likely a case of racial and religious profiling, agents did everything they could to interfere with her reporting on this incident.

Before the story about her detention aired, Abdurrahman tried for weeks to get someone from Customs and Border Patrol or the Department of Homeland Security to talk to her about her treatment.

“During my detainment, I tried asking the guy in charge, Supervisor McPherson, why we were held for so long,” Abdurrahman said. “He said it wasn’t my right to know. I asked him the names of the agents who interacted with us while we were detained, and was once again told it wasn’t my right to know.”

When she did finally talk with someone at CPB on the record, he danced around her questions, saying again and again that he’d have to “investigate that” and get back to her.

Like Abdurrahman, Laura Poitras has long searched for answers about why she is so often detained and searched at the U.S. border. In his New York Times profile of Poitras, Peter Maass reported that she has written members of Congress and submitted Freedom of Information Act requests but hasn’t received any explanations.

“It’s infuriating that I have to speculate why,” she told Maas. “When did that universe begin, that people are put on a list and are never told and are stopped for six years? I have no idea why they did it. It’s the complete suspension of due process. … I’ve been told nothing, I’ve been asked nothing, and I’ve done nothing. It’s like Kafka. Nobody ever tells you what the accusation is.”

The intimidation and harassment of journalists at U.S. borders is bad enough, but the utter and complete lack of accountability is unconscionable.

The National Press Photographers Association, the ACLU and others have filed a lawsuit pushing back on the growing trend of suspicion-less detainment and electronics searches at U.S. borders.

“Government officials’ unfettered ability to search journalists’ laptops and other electronic devices will have a chilling effect on their ability to gather and disseminate the news,” said NPPA lawyer Mickey H. Osterreicher. “One can only imagine the added difficulty, if not impossibility, for journalists to conduct interviews, report on foreign relations or cover stories involving allegations of corruption when news sources believe that the information gathered abroad may be reviewed, copied and shared by agencies of the government without any of the normally guaranteed constitutional protections.”

Lawsuits like this one are important, but we also have to win this fight in the court of public opinion.

These scare tactics don’t just hurt journalists. The New York Times recently called U.S. borders a government “back door” for searching our devices. Susan Stellin of the Times revealed that the government has used border crossings to stop a whistleblower and thousands of other travelers, and has seized and examined these individuals’ electronic devices without obtaining search warrants.

We’re calling on the nation to stand up for press freedom, for security and privacy, and for their right to know. Eric Holder may not answer Cusack’s question, or Poitras’ question, or Abdurrahman’s question — but if thousands of us start to demand answers he’ll have to listen.

We cannot allow an unaccountable government to violate our rights every time we cross the border. It’s time for answers. It’s time for action.

Add your name here to join the fight. This is just the beginning.

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