Invasive Questioning at the Border

September 12, 2013

Over the past several years, at ports, land border crossings, and international airports across the country, U.S. citizens and lawful residents who are Muslim, or who are perceived to be Muslim, have been targeted by Customs and Border Patrol (CBP) officers for questioning about deeply personal beliefs, associations and religious practices protected by the First Amendment. On their way home to the U.S., these Americans have been asked about their religious identity, what mosques they attend, how often they pray, their religious charitable giving, and their views on U.S. military engagement in Iraq and Afghanistan. Some have had their electronic devices, such as laptops and cell phones, searched and data copied.

The U.S. government has a legitimate interest in verifying the identity and citizenship or legal status of individuals seeking to reenter the country. It also has an interest in ensuring that individuals who pose a threat to national security are detected and brought to justice.

But no legitimate government interest is served when CBP officers question a citizen or lawful resident about his or her religious or political beliefs, associations, or religious practices, or religious charitable giving when there is no reasonable suspicion, based on credible evidence, that the person has engaged in criminal activity. This practice harms our country's national security interests by wasting scarce government resources, generating false leads, and eroding the trust of these religious and racial/ethnic communities in law enforcement and government.

On December 16, 2010, the ACLU and Muslim Advocates sent a letter to Department of Homeland Security Inspector General Richard Skinner requesting an investigation into this troubling practice. The ACLU and Muslim Advocates also filed a Freedom of Information Act request with the Department of Homeland Security and Customs and Border Protection for information about whether and when government officials are permitted to ask citizens and legal residents about their protected beliefs, associations, and activities during border inspections. In February 2011 and September 2011, the Department of Homeland Security released 443 pages of responsive records. And in early May 2011, the ACLU and Muslim Advocates received a letter from the Department of Homeland Security Office for Civil Rights and Civil Liberties (CRCL) stating that it is opening an investigation into such complaints.

In a July 12, 2012 letter, CRCL stated that it had halted its investigation into CBP questioning of our clients and other Americans who are Muslim, or perceived to be Muslim, because unconnected individuals had brought a lawsuit against DHS involving similar allegations of invasive questioning at the border.  CRCL indicated that it would wait for that litigation to conclude before completing its investigation.  On April 15, 2013, the ACLU and Muslim Advocates sent a letter to Department of Homeland Security Acting Inspector General Charles K. Edwards to renew the request for an investigation into the questioning of American Muslims during border inspections about their personal religious and political beliefs and religious practices without any apparent justification, and to highlight additional, troubling examples of the practice.

Questioning individuals about their protected religious and political beliefs, associations, and religious practices (like charitable giving) may infringe upon rights guaranteed by the Constitution and federal law — rights that are not surrendered at the border.

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