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August 30, 2006

Return from Casablanca

I
was watching Casablanca last night. Rick Blaine -- the cafe owner played by Humphrey Bogart, of course -- was an American expatriot living in Morocco during WWII, when Morocco was a French protectorate. As the movie shows, the Nazis -- by then at war with the U.S. -- were welcomed visitors. So it occured to me, after watching Rick shoot Major Strasser so that Victor and Ilsa could escape to Portugal -- in effect, rejoining "the fight" against fascism, as Victor said -- what would happen if Rick wanted to return to the United States?

Fast forward to 2006. Rick would be coming here from a country brimming with people allied with our enemies. Like the two American citizens in Pakistan who won't submit to an FBI interview. Would it be enough for Rick to show his American passport -- which seems to be all federal law requires? Or would the unitary Executive deny Rick his 5th Amendment liberty interest as an American citizen to travel abroad and return home unless he first waived his 5th Amendment right to remain silent as a condition for reentry? Does "national security" outweigh Rick's 5th Amendment liberty interest and privilege against self-incrimination? Does the unitary Executive have the plenary power to exclude American citizens from America? What if a citizen with a valid passport won't answer the FBI's questions at the border? Do we, as Americans, now forfeit our 5th Amendment rights when cross the border into a foreign country -- because during the height of the Cold War, I don't think that was true? If American citizens with valid passports can be denied reentry on "national security" grounds for refusing to answer the FBI's questions, then isn't every protection guaranteed by the Bill of Rights now outweighed by "national security" when a citizen refuses to answer questions? It seems to me, the fact that questioning occurs at the border makes no difference -- because questioning a citizen implicates 5th Amendment concerns while a "border search" implicates the Fourth Amendment.

But this seems to me to be exactly what the Bush Administration contends. All the world's a battlefield. So the Bill of Rights must yeild to the unitary Executive's on-the-spot decision that a citizen must answer questions or, in the interests of national security, lose his liberty -- and end up in one of those detention camps being built by Halliburton.

Update: Commenter David Cohen helpfully points out that the events depicted in the movie take place during the first week of December 1941. In my "fast forward" scenario, I don't know that it would change Rick's border experience.

Posted by shertaugh at August 30, 2006 8:49 PM

Comments

Until I read about this I had assumed that the United States could not exclude a U.S. citizen from re-entering the country. Isn't that a form of banishment that violates what most would consider a basic human right?

Posted by: Bryan Gates at August 31, 2006 10:44 AM

Seems pretty egregious to me, and I've got no problem with NSA wiretaps or the FBI wandering around libraries.

One wonders, though, how the executive intends to prevent them crossing the US's notoriously porous borders if they're really intent on doing so. Seems to me a flight to Nuevo Laredo and a jaunt across the Rio Grande would solve their problems. Provided they don't carry any contraband, they wouldn't even be entering the country illegally, and once on American soil, they'd presumably be entitled to writ of habeas corpus if detained. I think the FBI here is seriously overplaying its hand.

Posted by: lostingotham at August 31, 2006 12:19 PM

For what it's worth, the action in Casablanca takes place during the first week of December, 1941. The United States and Germany were not at war at that time.

Posted by: David Cohen at September 1, 2006 12:06 AM