On May 1, 2010, Pascal Abidor was riding an Amtrak train from Montreal to New York. His parents live in Brooklyn, and he was on his way to visit them. The school year at McGill had just ended, and he felt relieved and calm as the train rolled south towards America.
At about 11 a.m., the train arrived at the U.S. border and made a routine stop. A team of Customs and Border Protection (CBP) officers boarded the train and advanced through each car, questioning passengers. Pascal had made this trip countless times before, so when a customs officer approached him, he didn’t give it a second thought.
But Pascal had never met Officer Tulip.
After looking over Pascal’s U.S. passport and customs declaration, Officer Tulip asked two simple questions: Where do you live, and why?
Pascal answered that he lived in Canada. He lived in Canada because that’s where he was pursuing a PhD in Islamic Studies.
Next, she asked him where he had traveled in the previous year, and he answered Jordan and Lebanon. He showed her his French passport (he’s a dual citizen) with the “Hashemite Kingdom of Jordan” stamp, and the Lebanese stamp with the little cedar tree on top.
That didn’t help. Officer Tulip immediately told him to grab his things and follow her to the train’s cafe car. Pascal gathered his luggage, but Officer Tulip carried the bag containing his laptop. At the time, he thought she was just being helpful.
In the cafe car, they were joined by five or six more CBP officers. Pascal sat across from Officer Tulip as she took out his laptop, turned it on, and asked him to enter his password, which he did.
As she scrolled through the contents of his computer, Pascal could only see her reaction. Officer Tulip signaled to her colleagues and pointed at something on the screen. She then turned to Pascal and demanded an explanation.
Pascal was now surrounded by half a dozen suspicious American border police, staring at photos – on his laptop – of Hamas and Hezbollah rallies.
Where had he gotten “this stuff,” Officer Tulip asked. Pascal explained that his PhD research is on the Shiites of modern Lebanon. This was not, in her books, a good answer. Finally, the officers told Pascal that he would have to leave the train with them.
“Take me off the train, I’ll walk back to Montreal,” Pascal offered. Given what he would go through in the next few hours, Pascal might well have preferred the walk.
Instead, he was frisked, with particular vigor around his genitals. Then he was handcuffed. Pascal winced.
As they led him off the train, the officers draped a coat over his bound wrists. They claimed it was to spare him the embarrassment of a perp walk. But as Pascal walked past the train’s windows, he tried to show the passengers that he was cuffed. He hadn’t done anything wrong, and he wanted witnesses.
Pascal was then loaded into the back of a van. Oddly, as one of the officers tried to close the van’s side door, it fell clean off. It could have been a moment of levity in a grim situation. But Pascal didn’t dare laugh.
The Detention Cell
When they arrived at the Champlain Port of Entry, Pascal was put in a five-by-ten foot cell with cinder block walls and a steel-reinforced door. He was told to wait. He stayed in the cell for about an hour. Officers came in at random intervals to ask him questions.
“I thought I was going to throw up,” he said. “I thought I was going to be sent to Guantanamo Bay.”
Pascal was then removed from the cell and brought to an interrogation room, complete with florescent lighting and a two-way mirror. He sat across from two CBP officers – Officer Tulip and a man named Officer Sweet – while another officer sat at the end of the table, seemingly in case Pascal got violent.
“They thought I was straight-up dangerous,” Pascal said.
Then the real interrogation began, an hour and a half of intensive questioning. Where was he born? Where were his parents born? What religion was he raised with? Had he ever been to a rally in the Middle East? Had he heard any anti-American statements in the Middle East? Had he ever seen an American flag burned? Had he ever been to a mosque? But the questions always came back to the same point – why Islamic Studies?
“I want to be an academic – this is just what I happen to be an academic in,” Pascal told them.
His answers seemed to fall on deaf ears. The interrogation continued. It was the same questions, over and over. They were looking for him to make a mistake.
They soon fell into a good-cop, bad-cop routine.
“He thought I was cool,” Pascal said of Officer Sweet. Officer Tulip, on the other hand, “thought I was the most evil person. She thought I was a movie villain or something.”
They claimed Pascal’s dual citizenship made him untraceable. They suggested he was attractive “to both sides.” Pascal was baffled. Both sides of what?
Finally, after about three hours in detention, he was released. But there was a catch – the CBP was keeping his laptop and hard drive.
Pascal was enraged. While he had been waiting in the cell, Pascal had given some thought to what he would say to the officers once he was free. Now, with his anger compounded by the loss of his computer, Pascal delivered a blistering speech, directed at his arch-nemesis, Officer Tulip.
“I ripped into her,” he said. “She just stood there, [then] walked away.”
When an FBI agent came up to him and attempted to apologize, Pascal stopped him mid-sentence. “I don’t want to hear your apology,” he told the agent.
Before he left, he was given his camera and his two cell phones. There was a scratch on the back of one of the phones, as if someone had tried to open it.
Taking Legal Action
After being released from detention, Pascal hitched a ride on the next bus with an open seat that came through the checkpoint. He arrived in New York at midnight. That night, he had trouble sleeping, as he would have for the next week or so.
The next morning, he sat down and wrote eleven single-spaced pages detailing exactly what had happened to him. The day after that, he began making phone calls to state senators and advocacy organizations in the hope of finding someone who would help him. Lots of them were interested in his case, including Anthony Weiner, the former New York Congressman.
Finally, Pascal settled on the ACLU. The American Civil Liberties Union (ACLU) is the oldest and largest civil liberties organization in the United States. Free speech cases are its bread and butter. And they told Pascal that his right to free speech, protected under the First Amendment to the Constitution, had been violated.
Two days after his first phone call with the ACLU, Pascal was in downtown Manhattan, sitting in a meeting with a team of lawyers. The first thing they did was to write a letter to the CBP demanding that they return Pascal’s laptop. The day after the letter was sent, Pascal got a call from the CBP asking him where they should overnight his belongings.
But at this point, the damage was done. When the laptop arrived in the mail, the seam between the keyboard and the outer case that led to the internal hard drive appeared to have widened. The warranty seal on his external hard drive had been broken open, too. The government had already searched, and, they later conceded, made copies of Pascal’s electronic life.
Pascal and the ACLU were incensed. His laptop contained intimate personal information: chat logs with his girlfriend, university transcripts, his tax returns.
The problem was, everything Homeland Security had done was completely by the book.
In August 2009, the Department of Homeland Security enacted a policy that allows for the search and seizure of electronic devices at the border without reasonable suspicion. Under the policy, the DHS can detain any electronic device indefinitely, and copy and share the information it contains. Between October 1, 2008 and June 2, 2010, more than 6,500 people had their electronic devices searched at U.S. border stops.
It was under this policy that Pascal’s laptop and hard drive were searched and detained.
Upon the enactment of the policy, DHS Secretary Janet Napolitano stated that, “keeping Americans safe in an increasingly digital world depends on our ability to lawfully screen materials entering the United States. The new directives announced today strike the balance between respecting the civil liberties and privacy of all travelers, while ensuring DHS can take the lawful actions necessary to secure our borders.”
The policy makes a point of specifying that, “at no point during a border search of electronic devices is it necessary to ask the traveler for consent to search.”
This struck the ACLU as deeply unconstitutional. So they and Pascal decided to sue Janet Napolitano, Director of Homeland Security, to challenge the constitutionality of the policy.
In September 2010, they filed their “complaint” against Napolitano, the legal document that kicks off a lawsuit. The ACLU argued that the DHS policy violates the First and Fourth Amendments, which guarantee free speech and protection against unreasonable search and seizure respectively.
The U.S. government tried to get the case thrown out, arguing that while Pascal’s story was true, the government’s actions had not broken any laws.
On the question of the Fourth Amendment, the government effectively said that just about any kind of search is legal at the border, in the name of national sovereignty.
“Searches made at the border, pursuant to the long standing right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border,” the government wrote in its Motion to Dismiss, the legal maneuver for getting a case thrown out.
With regard to the First Amendment, the Motion to Dismiss stated that, “an otherwise valid search under the Fourth Amendment, does not violate the First Amendment rights of an individual – even a completely innocent individual – simply because the search uncovers expressive material.”
In other words, a border search is a border search is a border search.
And it’s true that all travelers are subject to a routine search at the border, whether or not there’s suspicion of wrongdoing.
But while the U.S. government argues that the search of laptops should be considered a part of these routine searches, the ACLU says these searches are more invasive and therefore must be held to a higher standard.
“It is different to go through someone’s shoes and contact solution, than to go through all the documents on their computer,” said Catherine Crump, one of Pascal’s ACLU lawyers.
Last July, Pascal and his ACLU lawyers went to a courtroom in Brooklyn to argue against throwing out their case. The judge has still not come to a decision.
Meanwhile, the DHS policy remains on the books. Laptops and cell phones continue to be detained and searched without reasonable suspicion at the U.S. border.
Pascal, for his part, hasn’t had a normal border-crossing since that May 1 morning. “Now, every time I cross the border, I get harassed,” he said.
In December 2010, he was crossing the border with his father. The border guards began interrogating him in unusual ways. “They refused to believe my dad was my dad,” he said. “If you saw my dad, you could not believe we were not related.”
The guards then searched the car top to bottom, and made the Abidors wait at the checkpoint for two hours.
“This is about lowering the threshold of what is acceptable to us,” Pascal said of his treatment at the hands of the CBP. “You can’t have rights and then selectively apply them.”