In yet another flagrant violation by the US government of its obligations as a party to the International Covenant on Civil and Political Rights, the US has placed a US citizen on the no-fly list while he is under detention and awaiting deportation from Kuwait, where he reports having already been tortured. Because he can’t return to the US without flying, Kuwait won’t release him from custody (just as the US refuses to release prisoners in Guantanamo who have nowhere else to go except the US).
The New York Times broke the story yesterday of “Gulet Mohamed, a Somali-American who turned 19 during his captivity.” Today Glenn Greenwald has more including raw audio of his telephone interview with Gulet Mohamed, while Mother Jones reports on a press conference by his attorneys and members of his family back in the USA.
We’ve reported here and here on previous incidents of US citizens being denied their right of return, although none with such serious allegations of torture or where they were being detained abroad — not merely stranded in de facto extra-judicial exile — as a result of being unable to return to the US.
Article 12 of the ICCPR provides that, “Everyone shall be free to leave any country, including his own…. No one shall be arbitrarily deprived of the right to enter his own country.” But the US ratified the ICCPR with the reservation that it would not be “self-executing,” and still has not enacted any legislation explicitly effectuating the ICCPR or creating a cause of action in US courts for actions in violation of US obligations under the ICCPR. So neither Gulet Mohamed nor any of the other similarly-situated US citizens can raise the treaty violation in US courts.
The DHS has designated an officer supposedly responsible for investigating and acting on complaints of violations of human rights treaties by DHS. But after years of persistent effort, we’ve still been unable to get any response to any of our complaints of violations of the right to travel embodied in Article 12 of the ICCPR, or even any confirmation that any of our complaints have been docketed and will be included in the reports on compliance and complaints the US is required to make, pursuant to the ICCPR, to the U.N. Human Rights Committee.
The only way someone in Gulet Mohamed’s position would be able to raise the US violation of the ICCPR in court would be in some country other than the US. That could be done, for example, if he bought a ticket to the USA (or tried to do so), and sued the airline that refused to transport him in the courts of its home country, the country where the flight originated, or the country where it refused to sell him a ticket. Refusing to transport him, or anyone else willing to pay the fare in the published tariff, would be a violation of the airline’s duty as a common carrier, as well as of the bilateral and multilateral aviation treaties (including those with the US) which require airlines to operate as common carriers.
The most obvious way for someone overseas subject to a no-fly order from the US government to get to the US would be to fly to Canada and travel overland from there. That would be a way for Gulet Mohamed to get out of Kuwait and away from the threat of more torture — except that the Canadian government has ordered airlines flying to, from, and within Canada not to transport anyone on the US no-fly list. In this case, Canada’s enforcement of an extra-judicial US no-fly order is contributing directly to Gulet Mohamed’s inability to escape from the threat of renewed torture in Kuwait.
Finally, this case highlights the significance of the extraordinary US claim to extraterritorial jurisdiction over passenger departures from anywhere in the world. Even if Gulet Mohamed (or someone else who wasn’t a US citizen) were barred entry to the US, that wouldn’t prevent them from leaving Kuwait, or anywhere else. Only because the US claims jurisdiction not just over who can enter the US but who can leave anywhere else (if the US thinks their ultimate destination might be the US) is Gulet Mohamed trapped in Kuwait rather than free to flee to some third country of refuge.
And how would the US be able to enforce its ban on Gulet Mohamed’s return to the country of his citizenship? You guessed it: By systematic monitoring of PNR data, and the requirement for airlines to obtain PNR-based permission before they can allow each passenger to board.
[Follow-up interview by Glenn Greenwald with Gulet Mohamed's lawyer in the US, Gadeir Abbas.]