“Opting out” of TSA demands or questioning and photographing the TSA is not a crime!

We’ve reported before on the arrest of Phillip Mocek just over a year ago at a TSA checkpoint at the airport in Albuquerque, New Mexico, and his prosecution by local authorities on trumped-up criminal charges.

Now, after several postponements, Phil Mocek’s trial is scheduled to begin with jury selection on Tuesday morning, December 7th, 2010, in Albuquerque.  The trial is expected to last 2-3 days. There’s more information here.

(The trial has been postponed several times, and might be postponed again, but this date appears to be for real, and Mr. Mocek is making firm travel plans — by land, not by air — to be in Albuquerque.)

We encourage everyone who opposes the TSA’s lawless assault on our liberties to support Mr. Mocek. Spread the word about this case, especially to people you know in New Mexico. Contribute to Mr. Mocek’s legal defense. (He had to hire private lawyers to defend himself.)  Come to the trial in Albuquerque if you can. Pass out a leaflet.  Speak out and stand up to the TSA yourself.

This is the first TSA checkpoint resistance case to come to trial, and this trial comes during an unprecedented and spontaneous explosion of grassroots resistance to the TSA’s claim to unlimited authority. The outcome of Mr. Mocek’s trial will be critical to whether that resistance continues to snowball, or whether the TSA and its allies in authoritarianism can terrorize and intimidate law-abiding travelers into submission to their illegitimate authority.

There are no laws or published regulations defining what the TSA is allowed to do. In response to a Freedom of Information Act (FOIA) request from Mr. Mocek, the TSA has refused to release its secret procedures and directives for airport checkpoints.  And the DHS Privacy office has ordered the TSA not respond to our request for these documents without approval from the DHS “front office”, which apparently has never been given.

In these circumstances, only the courts can define the limits of TSA authority to search, interrogate, x-ray, and grope innocent travelers who are not suspected of any crime. So far as we know, Mr. Mocek’s case is the first time someone in the USA has been brought to trial on criminal charges for attempting to exercise their right to travel by air without showing ID or answering questions about themselves or their trip, or for photography or audio or video recording at a TSA checkpoint.

Very few TSA employees are sworn law enforcement officers or have police powers. At some airports including San Francisco (SFO) and Kansas City (MCI), the people with the “TSA” badges on their epaulets are really just rent-a-cops contractors. At any airport, TSA employees or contractors who threaten, touch, detain, or force travelers to move risk personal liability for crimes and torts including assault, sexual assault, battery, sexual battery, false arrest, and kidnapping.  And the last thing the TSA wants is to have the Federal courts review its sweeping claims to limitless administrative discretion and extra-judicial authority.

TSA policy is to call the local police if they want someone detained, arrested, or forced to comply with their (often illegal) demands.  So any challenges to the TSA’s practices at airport checkpoints are likely to end up in cases like Mr. Moceks’s, in local courts under state and local law.  The TSA isn’t officially a party to this case, and the TSA’s practices aren’t officially at issue.  But the TSA is the “real party in interest” in Mr. Mocek’s prosecution, if not in the strict legal sense of that phrase. What happens to Mr. Mocek will be critical to whether the TSA can terrorize and intimidate law-abiding travelers into submission to its illegal orders.

If you’ve had problems at a checkpoint yourself, the ACLU and EPIC are both collecting reports and complaints about what happens at TSA checkpoints, and EFF has information on how to complain to the TSA and DHS. You may also want to talk to a lawyer about bringing a criminal complaint or civil lawsuit against TSA employees or contractors who act illegally against you.  We have more suggestions for action in our recent article on, “What is to be done about TSA?”

None of the charges against Mr. Mocek are supported by any of the evidence we’ve seen, including the checkpoint videos and police radio recordings released to Mr. Mocek in response to his requests under New Mexico’s public records laws.

So far as we can tell, the only reason for the local prosecutor to continue to press these charges would be to provide an excuse for the improper actions of the TSA and local police in arresting Mr. Mocek, and/or to retaliate against him for exercising his right to decline to consent to search or other TSA demands, to remain silent or ask his own questions in response to TSA interrogation, and to photograph and record his interactions with the TSA and police.

Of course, the seriousness of the bogus charges being pressed against Mr. Mocek shows why it’s so important for travelers to be able, for their own protection, to photograph and record exactly what happens at TSA checkpoints.

To be clear, we don’t represent or speak for Mr. Mocek or his attorneys. As of now, while serious if entirely unfounded criminal charges are pending, neither Mr. Mocek (on his attorneys’  advice) nor his lawyers are commenting publicly on the case. But we fully support Mr. Mocek’s actions in standing up to the TSA, and his right to opt out of providing ID or “consent” to search, to ask his own questions at the checkpoint, and to photograph and record what the TSA and police said and did to him.

Standing up to the TSA is not a crime. Phil Mocek is not a criminal. Drop the charges!

We’ll be in Albuquerque ourselves to observe and report on Mr. Mocek’s trial, to help explain the issues it raises, and to support Mr. Mocek’s rights (1) to travel without showing ID credentials or answering questions from the TSA or police and (2) to photograph and record his interactions with TSA and police officers. Contact us for more information or if you’d like to arrange for an interview or speaker from the Identity Project.