As of today, June 1, 2009, even U.S. citizens are officially prisoners in the USA, or exiles barred from entering our own country without the government’s permission.
We are now forbidden by Federal regulations from leaving or entering the USA, anywhere, by any means — by air, by sea, or by land, to or from any other country or international waters or airspace — unless the government chooses to issue us a passport, passport card, or “enhanced” drivers license (any of which “travel documents” are now issued only with secretly and remotely-readable uniquely-numbered radio tracking beacons in the form of RFID transponder chips), or unless the Department of Homeland Security chooses to to exercise its standardless “discretion” to decide — in secret, with no way for us to know who is making the decision or on what basis — to issue a (one-time case-by-case) “waiver” of the new travel document requirements.
If you’re in the USA without such documents — even if you were born here, or are a foreigner who entered the USA legally without such documents (a Canadian, for example, who entered the USA by land yesterday when no such documents were yet required), or your document(s) have expired or have been lost or stolen — you are forbidden to leave the country unless and until you procure such a document, or unless and until the DHS gives you an exit permit in the form of a discretionary one-time waiver to leave the country — but not necessarily to come home, unless they again exercise their discretion to “grant” you another waiver.
If you are a U.S. citizen abroad without such a document (for example, if you entered Canada legally without it yesterday by land, when it wasn’t required, or again if your document(s) are expired, lost, or stolen) you are forbidden to come home unless and until you can procure a new document acceptable to the DHS, or unless and until the DHS gives you permission to come home in the form of a discretionary one-time waiver.
The DHS admits, at the top of its GetYouHome.gov propapganda website, that it might take “several weeks” to obtain such a document if you don’t have one already or if it expires or is lost or stolen. A temporary paper drivers license without a photo, or even a standard photo licnese or state ID, won’t suffice — only an extra-fee EDL with an RFID chip, which also takes several weeks to obtain in those few states that issue them at all. Backlogs for even “rush” passport issuance can be even longer, as we pointed out in our comments to the DHS. It doesn’t matter if your next-of-kin is dying in Canada or Mexico. (Suppose a relative gets sick or injured, and needs you there to make medical decisons or escort them home, but you were’t going on the trip with them, and don’t have a passport.) You can’t go unless the U.S. government approves your papers or approves a standardless discretionary “waiver” for you to leave the U.S. — which won’t guarantee that they’ll let you come back.
This is the final stage, effective June 1, 2009, of implementation of the so-called “Western Hemisphere Travel Initiative” (WHTI). The latest amendments to the regulations remove the last of the former general exceptions, for land travel between the USA, Canada, and Mexico, to the general rule requiring passports in the (unconsitutional but as yet untested) Federal statute at 8 U.S.C. 1185(b):
1185. Travel control of citizens and aliens
Except as otherwise provided by the President and subject to such limitations and exceptions as the President may authorize and prescribe, it shall be unlawful for any citizen of the United States to depart from or enter, or attempt to depart from or enter, the United States unless he bears a valid United States passport.
You don’t need us to tell you what’s wrong with this picture. But if you want it spelled out, you can read the comments here and here that we submitted to the DHS when they proposed the WHTI regulations imposing these ID and exit and entry permit requirments, first for airports and seaports and then for land border crossings.
We shouldn’t have needed to point out to the DHS that the WHTI travel document requirements are in flagrant violation of the International Covenant on Civil and Political Rights (ICCPR), one of the most important human rights treaties which the U.S. has signed and ratified. Article 12 of the ICCPR guarantees that, “Everyone shall be free to leave any country, including his own,” and “No one shall be arbitrarily deprived of the right to enter his own country.”
This article of the ICCPR has been interpreted by the U.N. Human Rights Committee (and by the U.S. when it has criticized other countries such as Cuba for their exit restrictions on their citizens) as making those rights near-absolute. The WHTI document rules are also in violation of the North American Free Trade Agreement (NAFTA) and the NAFTA Implemdentation Act, by imposing a barrier to Canadians and Mexicans wishing to come to the U.S. to compete for business — the requirement for a passport or enhanced drivers license (EDL) — that doesn’t apply to U.S. citizens doing business within the U.S.
And that’s not to mention the incompatibility with the U.S. Constitution of these restrictions on travel, movement, and assembly.
DHS APIS regulations already require airlines to obtain individualized prior permission from the DHS before they allow anyone (even a U.S. citizen) to enter, leave or transit the U.S. by air, and the the Secure Flight scheme will require the same for domestic flights as soon as the travel industry can build the elaborate and expensive infrastructure needed for such a real-time travel surveillance and control program. Meanwhile, the DHS is exapnding their assertion of similar and increasingly intrusive powers of search, seizure, interrogation, and above all surveillance (monitoring and logging) and control of travel and movement within the U.S. through warrantless, suspicionless checkpoints on roads that don’t cross any border and are up to 100 miles from coasts or borders, and at airports for passengers on domestic flights.
Previous court decisions upholding government discretion in whether or not to issue passoports has been premised on the assumption that passports were useful to facitlitate travel, but were not required for travel or for the exercise of any other rights. Those decisions will, obviously, need to be revisited in light of the fact that government-issued documents are now explicitly required as a condition of the exercise of those aspects of the right to travel — the right of anyone to leave the U.S., and the right of U.S. citizens to return to our own country — that are most explicitly guaranteed by international treaties to which the U.S. is a part, and which under the U.S. Constitution are “the supreme law of the land”. The DHS is cleverly saying that at first they will only issue warnings and waivers, in most cases, to U.S. citizens seeking to enter or leave the U.S. without the newly-required travel documents. Presumably, they hope that the new ID and permission-based travel control regime will become a well-established fait accompli before anyone is able to bring a court challenge of a DHS decision to bar someone from leaving the U.S., or barring a U.S. citizen from entering the country.