How a misinterpreted gesture got me on the terrorist watch list — maybe
A curiously intense blanket of fog made nearly the whole journey from Montréal to the Highgate Springs border entrance a hyper-vigilant, steering-wheel-clenching affair. I approached the U.S. Customs station at 1 in the morning on November 21 with relief, if only because it was the first truly well-lit area I’d seen for 40 miles. Winding around the pylons and creeping up to the single open checkpoint lane, I saw that not a single car was ahead of me. I passed through the green light and stopped at the booth, content in my belief that, though dinner with a friend in Canada had run late, the compensation would be a quick re-entry to the Land of the Free.
The booth was empty.
I waited, dumbly blinking, for about 45 seconds. Nothing. I offered a flummoxed “Hello?” and, after hearing no response, drove a few feet until I could see through the nearly floor-to-ceiling windows of the customs office. I caught the eye of an officer behind a desk inside and held up my hands in what I hoped was the international “What should I do?” pantomime. He gave me a sweeping gesture with his left hand.
Off I went.
As I came to the first Winooski exit, I saw that a State Trooper SUV was tailing me closely. It stayed on my bumper until the Shelburne exit. By the time I took a left onto Shelburne Road, lights were flashing.
“Did you cross the Canadian border tonight?” the trooper asked after a sprightly walk-up, one hand on his holster.
“Yes, just a half-hour ago.”
“You’ve been reported as having illegally crossed the border.”
I knew just enough about border issues to imagine how much trouble I could be in. But I also knew that a skittish demeanor is an invitation to extended interrogation, so I tried to stay calm. After the usual license offering, I was asked to open the trunk. It was hard to forget that every single lawyer I had ever asked about this question had advised me that the proper answer is “no.” But “yes” came tumbling out of my mouth like a dry turd, and I got out of the car to let him peer into the jumble of jumper cables, old magazines and dusty summer gear. I had borrowed some friends’ car for the trip while mine was in the shop, and, though I was reasonably certain they were not traffickers of uranium, the fact that this wasn’t my ride lent the proceedings an extra air of anxiety.
Two more sets of lights appeared, these belonging to the Burlington Police, while the trooper advised me of the report he’d received from the border station.
“I’ve been after you since Swanton,” he said. “We were told that you charged through the border. Didn’t even stop.”
“That not true, officer,” I replied, and tumbled through my version of the events. After I’d offered answers to a raft of questions, he gave me some options.
“What usually happens is that you are either escorted back to the border to go through again . . . or I can call the dog unit to go over your car.”
Faced with the prospect of a 40-mile escorted journey and the very real possibility — or so he told me — of a $5000 fine and/or seizure of the car, I chose door number two. In 10 minutes a bouncing German Shepherd approached, leading a Burlington cop who immediately struck me as being in an evil mood. Ten minutes of searching included a very uncomfortable moment of particular doggie interest in the goings-on under the hood, but, after a hushed meeting of the officers, I was declared a non-terrorist.
“I’m going to give you a break tonight,” the trooper told me. “But you need to know that this could have gone very differently. You should also know that you are in our system now, and if there is ever another incident at the border, there won’t be a second chance then.”
Yes, I was stupid. Yes, I should have got out of the car and marched right up to the Customs building and asked that they clear me. Being new to Burlington is no excuse. But, after my blood pressure died down to a distant thrum, it occurred to me that I needed some answers. Was I now a security risk, or on a watch list? Can I go back to Montréal? And what “system” am I part of, anyway?
Those who transgress border policy, wittingly or not, will find the answers to these questions murky at best, Kafka-esque at worst.
According to the General Accounting Office, there are more than a dozen federal watch lists, including the Terrorist Exclusion List, the Specially Designated Nationals (SDN) list, the Denied Persons List, the Most Wanted List, the No Fly list and the Watch List. Ever since 22 formerly independent federal agencies were enveloped by the Department of Homeland Security (DHS) in 2003 — including the Customs and Border Protection offices — those agencies have shared information more actively than ever before. And border violations are an informational component in determining security risk lists.
A message left at Congress-man Peter Welch’s office resulted in a quick call back from Susan B. Elliot, community liaison at Welch’s Main Street office in Burlington. After consulting with a few colleagues on the matter, she told me that, essentially, there was almost no way of knowing if I was on a terrorist watch list or not. She mentioned the Transportation Security Administration’s No Fly list as an example.
“Should you have ended up on a list like that, you’d never know it,” Elliot said. “It’s possible to file a petition to have your name removed, but I doubt that you’d even know the results. It’s a pretty cloudy issue.”
My immediate concern was whether I could travel to Canada again, so a call to the customs office was in order.
Ted Woo, in the public affairs department of the Customs and Border Protection Office in Boston — a division of DHS — was polite but unable to tell me whether I was now a border risk. “I’m just not in a position to comment on your situation,” he said, and suggested that I contact the Highgate Springs checkpoint directly.
That, too, proved a dark avenue; calls to the station were not returned. But a visit to the Williston State Police office brought slight reassurance. Yes, there was a record of the events of that early morning, the clerk revealed, but there was no indication of “ongoing interest” or pending matters before the state.
It seemed I was clear to drive myself around Vermont, but my inability to determine whether I was a border risk or on a federal watch list was at once curious and unnerving. As I was discovering — and as Allen Gilbert, executive director of the American Civil Liberties Union-Vermont, further detailed — the problem is getting hold of that list information, and figuring out to whom I can appeal if I consider myself unfairly categorized.
“Several months ago there were 720,000 people on the [FBI’s] watch list alone,” Gilbert advised me. “Now it’s up to 860,000, and, as the number gets up to a million, you really have to evaluate how effective any list is that has that many people on it. It’s also like quicksand,” Gilbert added, “in that it’s easy to stumble into the list and nearly impossible to free yourself from it.”
As of press time, I was still unable to confirm my presence on any watch list, and anxiety ruled my plans to travel back to Montréal on November 30. Though my return to the U.S. the next day occurred without incident, a lingering worry remained.
According to Ted Woo at Customs and Border Protection, travelers entering the U.S. after January 30, 2008, will need to have “enhanced” identification that includes proof of citizenship in some form. Other than a passport, a birth certificate is the only practical method of proving citizenship. As border policies evolve in this more stringent direction, the lesser-caliber brand of “violation” that I committed will probably become more common. The distinction between those who violate border policy willfully and maliciously and those whose infractions are the result of misunderstanding may become less clear, and the issue will further tax DHS officials’ time and energy.
The ACLU’s Allen Gilbert, however, sees another consequence of this ambiguity: “Fear. That’s the [common] denominator here,” he offered. “You were told — correctly or no — that you were in a ‘system’ but are not in a position to find out what that means . . . if anything. You were not charged with a crime, yet were given reason to be afraid,” Gilbert continued. “Is that an effective way to maintain security? I’m not so sure, but fear of being ‘marked’ doesn’t strike me as a great way to maintain liberties here at home.”