Reacting To Hasan Piker’s CBP Detention

Written By Leeja Miller

Sources:

Transcript:

Hi you’re tuned in to Why, America? I’m Leeja Miller, let’s get started. Over the weekend, popular twitch streamer Hasan Piker, aka Hasanabi, was traveling from France to Chicago when he was pulled aside by TSA at O’ Hare airport. He talked about the whole incident on his stream, here’s a very brief overview.

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This story feels personal to me, not because I know the guy, I don’t, but because when you’re a left leaning political commentator with half a million followers and you see the largest left leaning commentator in the country get targeted, it’s gonna really make ya think. Here’s some background for those who don’t know what I’m talking about–I’ll admit I mainly only know who he is because my husband watches him occasionally. I’m not sure what his viewer demographics are but I’d imagine his audience is largely millennial men. But considering MY viewer demographics are like 75% men and lots of millennials you might already know all this. In case you don’t: Hasan Piker is one of the largest streamers on Twitch, like top 5 globally, he streams under the name HasanAbi. He gets tons of press, does speaking gigs around the country, potentially world I don’t know, he’s associated with The Young Turks, Cenk Uygur is his uncle. Hasan also has a huge YouTube presence largely by way of people taking clips of his longer livestream and posting them on here which, like, y’all I don’t have time or interest in making shorter clip versions of my videos so by all means if you want to also do that with my shit just credit me and the original video you’re clipping but have at it. But this man is streaming 8 hours a day 7 days a week over on Twitch. During that time he’s often watching and commenting on the news, talking with the chat, watching other videos on politics and history and cultural commentary, etc, he has watched my videos on his streams a few times and has only had really nice things to say which I appreciate, even when his chat screams I’m just a dumb lib, which listen that’s fine, I’ve also been called a, quote, “left wing nut who is very annoying” so the main thing I’ve learned about this job is it’s literally impossible to make everyone happy so you just gotta do you, ya know??

So the media has since really latched on to this story about Hasan’s brief ICE detention, but here’s why I think this is important to talk about. First, I think it’s important that he noted that he has been regularly targeted while traveling through airports. His name is Hasan, despite being born in the United States I think he spent a lot of his life in Turkey and was raised Muslim, so yeah TSA is going to target him–it’s not right or fair it’s just reality, and I think it’s important because he’s spent his life getting targeted by TSA and even this was not a normal encounter by his own account. The implications being that business is not being conducted as usual with TSA and if you are someone who often gets pulled aside by TSA, just assume you will be going forward, especially if you’ve been out of the country but I’m not even sure that matters. We’ll go over your rights and best practices in a minute because you better bet I looked that shit up and memorized it.

This story with Hasan is also notable because while he is someone who gets profiled by TSA regularly, he’s also a wealthy person who has the means to hire lawyers, he has a lot of friends with public platforms who would raise the profile of this if it got out of hand, he’s also an able-bodied man with no children, he was entering the situation with a lot of privilege. And so he was able to enter the space with less fear and panic than your average person who’s getting pulled into a room and interrogated by ICE. That’s going to color his telling of his experience but it also allowed him to come out on the other side and then tell us all about it, which I think is important. A lot of people in the comments section were giving him shit for letting them take it that far, and if I were his lawyer, which I’m not, I would not have advised him to answer all those questions, but from an investigative journalism standpoint, given his privilege entering that situation, I think it was a service for him to come out the other side with that intel and tell the world.

Another interesting element of this story is his incredibly huge public profile. From how I understood it, he was pulled aside, they took his passport, he waited in a room and then they called him back. It’s unclear whether when he was initially called aside they knew who he was. They certainly knew who he was when they called him back for questioning. Our good friend DHS spokesperson Tricia McLaughlin who we talked about Monday released a statement saying, “Our officers are following the law, not agendas. Upon entering the country, this individual was referred for further inspection — a routine, lawful process that occurs daily, and can apply for any traveler. Once his inspection was complete, he was promptly released.” Classic state propaganda–this is totally normal you’re being crazy!!

But despite his public profile and them knowing who he was when they called him back I don’t know that this was a major conspiracy to “get” him. As I’ve said about other things, I think a lot of what’s happening, whether it’s arresting a mayor in New Jersey or a Judge in Wisconsin, is they’re taking advantage of situations as pretext to target general groups of individuals. They’re not necessarily targeting, you know, Judge Hannah Dugan from Wisconsin specifically, they’re just on the look out for anyone, anyone from specific and targeted groups, for sure, but anyone who they can claim stepped out of line and are ready to pounce when the opportunity presents itself. Or who they can claim were just present during totally normal and lawful routine ICE business and there’s nothing to see here. But that’s kind of the point–if I can sit back and say ah well Hasan Piker is probably on the FBI watch list, which like he probably is honestly given how much they hate progressives with large audiences, but I don’t think that’s what prompted this specific incident necessarily, but if I can’t sit back and say it was probably because of HIM not because of WHO HE IS and WHAT HE DOES, that’s less scary for me, an uninvolved third party. But instead, if the general message is that this could happen to ANYONE who publicly speaks out against Trump or in favor of Palestine or who they can erroneously tie to Hamas or Houthis or whatever other group they’ve dubbed a terrorist organization, that’s going to have a chilling effect across social media. And they know that. Or if the message is this could happen to ANY judge who gets in the way of ICE enforcement, or ANY mayor who attempts to look into what’s happening inside their local ICE detention center, that’s going to have a chilling effect across judges and elected officials as well. So while it may be counter-intuitive to have detained someone with such a large public profile who would absolutely speak out about this, I think it plays into the larger narrative of fear. They can’t control all 330 million of us, but they can sure try to scare us into submission.

And I think the internet plays a huge role in that. I recently read this really great essay in The Guardian by Naomi Klein and Astra Taylor called “The rise of end times fascism” in which they make a number of really important points but one that stuck out to me, and something I’ve fallen into as well, is that we are all looking to the 1930s to try to predict what happens next, well Mousollini did this, Hitler did that, so that means this is next, but at that time they didn’t have the atomic bomb or the internet. We are dealing with very different technologies that do heavily impact this moment in a way that is not predictable because it’s never happened before. They know how many people are on TikTok or watching Twitch or watching YouTube or listening to podcasts. They know the power of using those tools for propaganda. And they know they can get others to make that propaganda for them in a way that’s totally new, where in the past it was largely controlled by official newspapers or limited by the reach of, you know, paper pamphlets or news reels in cinemas. Not that I’m saying Hasan is spewing propaganda, but I think they’re betting that him talking about this would scare people enough to keep them quiet.

Because the reality of the situation, despite what our good friend Trish over at DHS is trying to tell us, is that this is not normal and this is also absolutely not lawful. I mean if we just look at the questions Hasan says ICE asked him, presumably as a prerequisite to re-enter the country, it’s a pretty cut and dry case of overreach. He cannot be barred from entering the country, or prosecuted in any other way, based on things he’s said or beliefs he’s held that are protected by free speech. Which is also a good opportunity to remind you of your rights when TSA or ICE stops you at the airport. Especially if you are a US citizen, which Hasan is, he was born in the United States. And I’ve seen a lot of erroneous information in comments sections across the internet. Note that I am not your lawyer and this is not legal advice, but it’s important to understand your rights generally. Because the reality is that the law is different when you’re in airport customs, dealing with ICE, TSA, border security, it just is. This is not, at least at the outset, a criminal arrest and detention in the traditional sense where you have your 4th, 5th and 6th amendment rights to remain silent and have a lawyer and not be searched, etc. Not exactly, at least. So here’s what you need to know if you’re a US citizen:

At the airport, law enforcement does have the right to ask you for your documents, ask you your immigration or citizenship status, and search your belongings for contraband. They do not need probable cause. If you are a citizen, you only need to answer questions about your identity and your citizenship status and you should never lie about that. It also is not in your best interest to refuse to answer the basic routine questions about the nature of your travels. They cannot deny you entry for failure to answer questions beyond your identity and citizenship status, but refusing to answer those additional questions will definitely delay your entry and be a pain in the ass for everyone. So: yes, tell them your identity, your citizenship status, and the nature of your travels. If you’re genuinely concerned about whether to answer that last one, you should talk to an immigration lawyer.

Beyond that, they cannot target you for additional questioning or deny you entry to the country based on your religion, race, national origin, gender, ethnicity, or political beliefs. Unfortunately proving in court that someone targeted you for your race or national origin or ethnicity or political beliefs is notoriously difficult and it is incredibly easy for law enforcement to claim some plausible deniability and reasonable pretext for why you were stopped. Which is why someone with a name like Hasan Piker who’s spent a lot of time in Turkey has spent his life getting routinely stopped by TSA whereas someone with a last name like Miller who’s a white lady, me, generally has no problem, and there’s no like actionable legal case Hasan could bring and actually prove he’s been targeted. Well, not until now. I’m not in a position to opine on whether he could sue ICE for this line of questioning, I’d imagine he’d struggle to find someone to represent him with that case, but based on his telling of events the questions were very pointedly about his political beliefs. That being said, as I always say, national security concerns are a very strong argument in court, so because they were questioning him about Hamas and other groups deemed terrorist organizations they would have a strong argument that they were just doing routine questions for security concerns related to terrorist groups. Especially since 9/11 that’s a pretty persuasive argument in court.

Anyway, the most relevant point here is that if you are a US citizen they cannot deny you entry into the country based on your political views. Your right to believe whatever you want, to say whatever you want, to speak to whomever you want, is protected by the First Amendment, with limited exceptions. Of course this country has a history of being willing to violate first amendment protections in the name of national security. The First Amendment said the same thing in the 50s when Congress was openly hunting communists. They CAN ask you questions about your citizenship, your identity, the nature of your travels, and they CAN search your personal items for contraband. It is ICE’s stance that this includes your electronic devices. That is not a settled area of law, there is nothing clear cut that says one way or the other whether ICE can search your phone or your laptop. They cannot deny you entry if you refuse to let them search your phone or laptop, but refusing to let them could result in you being held longer and they could confiscate your phone or laptop and hold them for days or weeks. This is a gray area, as are a lot of legal matters when it comes to borders and entry points. It is going to be your call about whether or not you give them your password or let them into your phone, and if this is something you’re concerned about you should consult an immigration lawyer about what to do the next time you’re traveling.

If you get pulled aside for questioning beyond the basic identification, citizenship status, nature of your travels, the way Hasan Piker was pulled aside, this is what you need to know: if you are a citizen, they cannot deny you entry to the country based on your religion, race, national origin, gender, ethnicity, or political beliefs. If they start questioning you about any of this, your refusal to answer cannot determine whether or not they let you back into the country. But your refusal to answer may determine whether you get held longer or for further investigation. If the questions do become intrusive, the ACLU recommends you complain and ask to speak to a supervisor. This is your time to let your Karen shine. Escalate that. Indicate that you think the questions are improper and you’d like to speak to a supervisor to complain.

What does “intrusive” mean? If you are a US citizen, because they cannot deny you entry based on your race, ethnicity, country of origin, gender, religion, or political beliefs, that’s going to be any questioning related to those issues. If they are asking you questions about your political affiliations, your beliefs, your contact with terrorist groups, that may be considered intrusive and they can likely only ask those questions if you are being detained on reasonable suspicion you have committed a crime.

In his livestream Hasan wondered what would have happened if he had asked “am I being detained” at the beginning of the questioning. That is, unfortunately, not clear cut either, because like I said there is gray area here and agents do have a right to ask questions pertaining to border security. However, asking the question “am I being detained” and seeing what they say isn’t necessarily a bad idea. They may say “no you aren’t detained but I have a right to question you” at which point you would ask to speak to a supervisor if they are asking intrusive questions. If they say “yes you are being detained” that is your cue that your rights have probably kicked in and you should say, out loud, that you want to speak to a lawyer and, out loud, you must say it out loud, that you are invoking your right to remain silent. If they say you are not being detained but then hold you for an unreasonably long time—again I can’t get you a specific amount of time, this is where consulting an immigration lawyer would get you clearer details—but if they are holding you for a long time that again is when it would be pretty safe to assume your rights are kicking in and you are being detained, whether they’re admitting it to your face or not, at which point you should out loud invoke your right to talk to a lawyer and remain silent, and then don’t say anything until you talk to a lawyer.

You have a right to freely move into and about the country if you are a US citizen, unless you are being detained. If you are being detained by law enforcement, your right to be free from unreasonable searches and seizures, to remain silent, and to have a lawyer, kick in. That means that they are required to have probable cause to detain you and search your belongings further, beyond the typical search for contraband conducted in airports. Again, whether or not they can search your phone or laptop for “contraband” without probable cause is not settled law, but it is the official ICE and DHS stance that they can. And that also means that when you invoke your right to have a lawyer present and to remain silent, they have to stop questioning you until you get a lawyer. They might not, they might blow through all of those protections, in which case any information they obtain would not be admissible in court to be used against you.

So to make it really clear, I think it’s helpful to look at it like there are two levels. The first level is typical airport security measures, where law enforcement has more leeway. The second level is where the situation has been elevated to an official detention. On the first level, you do not have your typical constitutional rights, you can be pulled aside into a side room, searched for contraband, your stuff can be searched, you can be questioned as to your identity, your fingerprints can be taken, you can be made to prove your citizenship, the nature of your travels can be questioned. The second level kicks in when you are being detained, accused of a crime. Which, again, if you are a US citizen the only reason they’d have to detain you is if they have probable cause to believe you committed a crime, because you have the right to move freely otherwise. On that second tier, they cannot do additional searches and seizures of your person or items without probable cause, and you can invoke your right to remain silent and speak to a lawyer. And in between those two levels is this little gray area, and that’s where this incident with Hasan Piker mostly existed. Where they’ve pulled you aside for additional questioning but you’re not officially “detained” and it hasn’t been an unreasonable amount of time, that’s where things get murky. Hasan said the whole thing took about 2 hours. That’s annoying, but in an airport I don’t know if that could be considered unreasonable. I’ve spent that amount of time just waiting in line at customs. It’s unclear how things may have escalated had he pushed back and said he would not answer questions related to his political beliefs or affiliations. Would they have used that as pretext to feel they had probable cause that he has aided and abetted a terrorist organization and hold him for further questioning, to officially detain him? Maybe. Would that hold up in court? Maybe not. But if they did escalate it then it would have been very clear that we’ve entered that second level territory and he could invoke his rights to remain silent and get an attorney. Or if he had pushed back or asked if he was being detained right away, that may have turned it into a situation that was more trouble than they wanted to deal with because escalating it to an official detention comes with a lot of pesky rights and rules and paperwork, so they may have asked him a couple questions and let him go.

Okay, given all this information, if you are a US citizen planning to travel out of the country, as I am in a few months, what should you do to prepare? Well, again you should consult an immigration attorney and this is not legal advice, but this is what I’m doing to prepare:

One: Contact an immigration attorney so that you know the number you would call should you need it. Check out the American Immigration Lawyers Association database at ailalawyer dot com, you can search by selecting “General” in the type of lawyer category and inputting your location. I would start by checking out the websites of the lawyers in your city and call the one that seems like a good fit and say I am a US citizen but I am going to be traveling internationally soon and I would like to understand my rights and what to do to prepare. See if you can keep their number in your phone in case of an emergency. Make sure your travel companions also have that lawyer’s number saved so they can call on your behalf if needed.

Two: I will likely get a second phone. This is not necessary but for me personally I think it would save everyone a headache if I had a phone I just use for international travel that has the basic functions I need—maps, travel apps, a few key emergency phone numbers saved, including that lawyer’s, and an international phone plan. Likely this means I will get a cheaper refurbished iPhone that’s unlocked and then purchase a temporary international eSim through a company like Airalo. Again, this is not a necessary step, but it is something I personally will likely be doing to just remove the question of what I would do if I get pulled aside and they ask me to unlock my device. It’s a peace of mind thing. No it’s not “complying in advance”, it’s a security measure. Also then if I lose my phone it’s less of a security risk. Wins all around frankly.

Three: When I am traveling, if I am stopped by law enforcement, I will not resist, I will answer their questions about my identity, my citizenship, the nature of my travels. I will allow them to search my belongings and yes my phone if they ask. Again it is a gray area of the law that I am personally not interested in becoming the test case for and the official ICE stance is that they can search my phone. If they ask me about my political beliefs, that is where I will draw the line because it is not relevant to my ability to freely enter the country unless I am being detained and investigated for a crime. If they persist, I will ask if I am being detained. If they say yes, I will invoke my right to remain silent and ask to speak to a lawyer. I may write the lawyer’s number on my arm ahead of going through customs just in case. If they say no, I’m not being detained, but they don’t let me leave, I will ask to speak to a supervisor. If they continue to hold me an unreasonable time, I will invoke my right to remain silent and ask to speak to my lawyer. Beyond that there’s nothing you can really plan for. Obviously this is not the protocol Hasan Piker followed when he was stopped at the airport, he answered a lot of questions and entertained the agent for a lot longer than I personally would have. He is also a person with enough money to take on litigation in a way I am not. I am also a woman which effects the safety I feel when entering spaces, being questioned, being detained, etc.

And of course I think it’s important to take a step back and discuss how absolutely fucked it is that I am making this video. I started this channel talking about Britney Spears and conservatorship law, thinking I would use pop culture and current events as a fun and fancy free way to teach people about the law. Now I’m using it to teach US citizens what to do when they are detained by ICE at the airport, knowing full well that what the constitution says and what the law is can only get us so far under the current regime. It is a scary time to be a public facing political commentator with a vast back catalogue of public dissent against the regime. I’m small potatoes compared to Hasan Piker, which could serve to help me fly under the radar or could make me more vulnerable. I am also the only woman I know of at my level doing political commentary to over half a million people on YouTube every week. Which could make me more vulnerable or could play in my favor because there tends to be more uproar when white women are targeted. The point is there are so many unknowns, but I think it is absolutely a factor that a social media personality was targeted as opposed to say, a Rachel Maddow type. Established journalists at major news organizations have the weight of that major news organization behind them. In many ways, social media commentators who are just independent people may be seen both as easier to pick off one by one but also as more subversive and more of a threat. We don’t have major editorial boards conducting oversight. We don’t have a legal department breathing down our neck telling us to play it safe. We aren’t owned by a major tech billionaire who’s already in Trump’s pocket. And we have strong parasocial relationships with our audiences and the trust that a lot of the mainstream media has lost. Times are scary but I do believe we are powerful, and we are seen as a threat because of those very factors.

That being said, I also don’t think most of us will be scared into silence. I sure as shit won’t be. Because one thing about anyone who has the absolute fucking GAUL to believe in themselves enough to start a YouTube channel or a Twitch stream and then just keep showing up and posting and streaming over and over and over again through the growth period where it’s literally only your mom watching and it’s fucking embarrassing and cringey and weird, one thing about this fucked up group of people willing to do that long enough to see any modicum of success, is that we are not a risk averse bunch. I left a safe and stable legal career to run my mouth on the internet. That’s fucking insane. And I’d do it again [AND I’D DO IT AGAIN BOP BOP BOP].

So listen, okay, we’re being smart, we’re being WARY, we’re being prepared, we’re being educated, but we’re sure as shit not being silent, okay? Unless we’ve been detained then we are absolutely being silent until our lawyer gets there. Got it? Great.

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Thank you to my multi-platinum patrons Marc, Thomas Orf, Sarah Shelby, Art, David, R_H, L’etranger (Lukus), Joshua Cole, Thomas Johnson, and Tay. Your generosity makes this channel what it is, so thank you!

And if you liked this episode, you’ll like the one from Monday about the arrest of the Mayor of Newark.

Leeja Miller
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