Despite being a party to international aviation and human rights treaties guaranteeing free passage through international airspace, the US government claims the right to require prior government permission (granted or withheld in secret, without due process, judicial review, or publicly disclosed standards) not just for travel to or from the USA but for transit through US airspace — even on nonstop flights that aren’t scheduled to land in US territory.

Most such overflights of the US between other countries are to and from Canada, where US control and surveillance of overflights have provoked continuing controversy and opposition.

Of the handful of other airline flight paths between other countries that cross over  US territory, the Paris-Mexico route continues to generate most of the — increasingly bizarre — incidents of US refusal of permission to overfly the US.

We reported last year on the Air France flight from Paris to Mexico City on April 18, 2009, that was diverted to Martinique in mid-flight when the US government refused to allow one of the passengers, Hernando Calvo Ospina — a Colombian citizen and journalist on assignment for Le Monde Diplomatique — to enter US airspace.  The US won’t tell Senor Calvo Ospina or the airline why, but apparently reporting on topics like US overt and covert destabilisation of foreign governments makes him a threat, even if he never planned to land in the USA.  Did they think he would hijack the plane to airdrop copies of his articles over South Florida?  Only the DHS knows for sure what they were thinking.

Four months later, on August 19, 2009,  Air France flight 438 from Paris-Charles de Gaulle to Mexico City was again refused permission to cross over the US, and diverted in mid-flight.  This time it had enough fuel to detour around the Florida Keys, but arrived in Mexico more than hour late, after many of the passengers had missed their connecting flights.  This time the blacklisted passenger was Paul Emile Dupret, a Belgian citizen and trade policy analyst on the staff of the GUE/NGL bloc in the European Parliament.  On a previous trip M. Dupret had been detained and interrogated, despite being part of an official European Parliamentary delegation, during a scheduled refueling stop in Miami on a through Iberia flight from Caracas to Madrid.  This time he wasn’t even trying to set foot in the USA, but was en route with another Europarl delegation to the World Social Forum in São Paulo, Brazil.  We’re left wondering, as is M. Dupret, whether the real US objections were to him or to the gathering to which he was en route.

We were pleased to learn that M. Dupret has intervened in the case filed March 1, 2010 with the Belgian Constitutional Court by the Belgian “Ligue des droits de l’Homme” (LDH), seeking to annull the law giving Belgium’s approval, as a member of the EU, to the EU agreement for US government access to PNR data. M. Dupret’s experience is a crucial reminder that the rights at stake in PNR-based decisions are not just those of “data protection”, but include fundamental rights of freedom of movement, as well as both substantive and procedural due process and judicial review of decisions made, in whole or in part, on the basis of PNR data.

Sadly, Air France and other airlines have acquiesced to these illegal orders while making no attempt whatsoever to challenge their validity in US courts, where the airline — as the recipient of the no-fly order that the government will neither confirm nor deny to the passenger — would have an easier time establishing standing to sue. Identity Project consultant Edward Hasbrouck’s complaint against Air France for failing to disclose fully what data it passes on to the US and other countries, and how it is used, remains pending with the French data protection authority, CNIL.

Last week there was yet another incident of a passenger on a different Paris-Mexico flight, this one operated by Aeromexico, being denied permission to pass through US airspace.  Once again the plane was already en route when the “no trespassing” message was sent to the flight crew, which suggests that the US still hasn’t actually been able to implement either the APIS or Secure Flight requirements for positive pre-departure permission (“clearance”).

This time the flight was diverted to Montreal, where the passenger the US wouldn’t allow into its airspace, a Somali citizen named Abdirahman Ali Gaal, was arrested by Canadian police for not holding visa for Canada — “a country he never intended to visit,” as the Globe and Mail noted.  Canadian authorities said that the basis for his continued detention would be the subject of an immigration hearing, but before that (or, apparently, any extradition hearing) could be held, Mr. Gaal was driven under guard to the US border, where he was arrested by US agents.

He remains in jail in Plattsburgh, NY, despite not yet, so far as we can tell, having had his detention reviewed by a judge in either the USA or Canada.

To recap: A nonstop flight from France to Mexico, carrying a Somali citizen among others, and scheduled to land neither in Canada nor the USA, is forced to land in Canada.  After being forced onto Canadian soil by government order, the Somali citizen is arrested for not having a visa to enter Canada.  Rather than being allowed to continue on his way to Mexico by an alternate route not overflying the USA, or being deported back to Somalia, and without being seen by a judge or any formal deportation proceedings, he is transported by Canadian guards to and across the US border, where he is arrested for alleged violations of laws related to attempting to enter the USA.

From our point of view, this takes “extraordinary rendition” to a new extreme, with the US and Canadian governments colluding to hijack an entire airliner and all its passengers in order to kidnap a foreign citizen en route between foreign points and deliver them into extra-judicial custody in the US.