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John Whitehead's Commentary

Is the Border Patrol Out of Control?

John Whitehead
Since the mid-Nineties, federal agents have been pouring into southwestern border towns in an attempt to curb the flow of illegal immigrants from Mexico. However, their presence is threatening to turn many of these towns into police states.

Human rights groups have been concerned about the border patrol build-up since at least 1998, when three people attempting to cross the border were fatally shot in a span of less than a month. Each of the three was killed for "holding rocks in a threatening manner."

A report in last week's New York Times suggests that the increase in federal agents has also resulted in an outbreak of possible constitutional violations. The Times report highlights the experiences of Hispanic-Americans in the Texas border town of Brownsville. There, citizens of all stripes, from judges to church workers, have been stopped for the crime of what is sarcastically referred to as "driving while Mexican." Local judge Gilberto Hinojosa says the town "feels like occupied territory."

The stories of these citizens are mostly the same. A border agent spots someone walking down the street or driving down the road and stops that person, who is usually brown-skinned, for questioning. Federal Judge Filemon Vila tells the story of his experience in the local airport, where he noticed agents stopping one Hispanic traveler after another. "Do you ever stop anyone who isn't brown?" he asked them. When the agents said that they did, Vila responded, "Well, you haven't since I've been here."

The Constitution prohibits law enforcement officers from arbitrarily stopping people without suspicion of a crime. However, agents have established "profiles," indicators of suspicion based on seemingly arbitrary factors such as a person's appearance or the number of passengers in a vehicle. Even Judge Vila was once stopped while driving down the road with three aides in his car.

Part of the problem is the explosion in the number of federal agents in towns like Brownsville. In 1993, there were approximately 3,400 agents serving on Mexico's border. In 1998, Human Rights Watch noted that the number had mushroomed to around 7,700. Last week, the Times report put the number at about 9,000 agents - 1,200 in South Texas alone.

With this many federal agents stuffed into a relatively small geographic area, constitutional conflicts are inevitable. Coupled with the political pressure to cut down on the flow of illegal immigrants - who allegedly suck up state funds by, among other things, sending their undocumented children to school - constitutional conflicts are seemingly accepted as a necessary evil.

Perhaps the most disturbing story to come out of the Times report involved the low-income neighborhood of Cameron Park. Last year, border patrol officers conducted a sweep of the area, purporting to rid the community of illegal troublemakers. But a local Catholic priest says agents weren't concerned with guilt or innocence. "Basically, everybody was a suspect," Father Mike Seifert told the Times reporter.

The main argument in favor of these Gestapo-like tactics is that they work. Illegal immigration is down, crime is down and high-profile drug interceptions are up. Being randomly stopped, proponents argue, is a small price to pay for such apparent benefits.

But this argument is distressingly close to those advanced by tyrannical regimes throughout history. Hitler himself justified his tactics as a necessary inconvenience to restore order to a chaotic society, as did Stalin during his periodic dissident purges.

Further, the Constitution is not susceptible to purely efficiency-minded arguments. Getting rid of due process would certainly lead to more criminal convictions. But it would also leave each one of us susceptible to the vagaries of an unaccountable state.

Is the border patrol out of control? If not, it's getting perilously close. And the Constitution demands that we address the problem before more innocent people are persecuted for their skin color - or worse, shot or killed for it.


Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His new book Battlefield America: The War on the American People  (SelectBooks, 2015) is available online at Whitehead can be contacted at

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