The U.S. government has yet again ordered a foreign airline, transporting foreign citizens between foreign countries, not to transport a specific foreign passenger through U.S. airspace between foreign points.
Yet again, U.S. authorities did this not through legal process and a judicial order such as an injunction, but through an extrajudicial administrative order to the airline.
Yet again, as with previous Air France flights between Paris and Mexico City, the “no-overfly” order was given to Aeromexico (this time for a Mexico City-Barcelona nonstop) only after the plane was in the air — this time forcing it to return to Mexico for lack of enough fuel to detour south around Florida and U.S. airspace.
And yet again, as with journalist Hernando Calvo Ospina and European Parliament legislative aide and policy analyst Paul Emile Dupret, the latest incident involved someone who appears to have been barred from U.S. airspace on the basis of their ideas rather than their actions: Mexican citizen and academic Raquel Gutiérrez Aguilar.
Gutiérrez tells the story in her own words in an open letter (original in Spanish; English translation) posted on a new blog she has started for discussion of her own and similar cases, “Los Non Gratos“. There’s also an analysis of the incident and its significance by law professor and expert in international human rights Craig Scott on OpenDemocracy.org.
Secret U.S. no-fly orders against passengers have also provided the basis for Air Canada to deny passage on flights whose flight plans included alternate airports in the U.S. at which they might have landed if diverted in an emergency, even if they planned neither to land in nor overfly the U.S. The legality of those decisions by Air Canada, under applicable Canadian law and international treaties to which Canada is a party, remains in doubt. In one case, they prevented a U.K. citizen (and Muslim) from returning home from Canada to the U.K., even though his permission to remain in Canada was expiring. In a second case, they caused the reverse problem, preventing a Canadian citizen (and Muslim) from returning home from Germany to Canada, even though his permission to remain in Germany was expiring. And in yet a third case, they prevented a U.K. citizen (and Muslim, and former prisoner released from Guantanamo and never charged with any crime in the U.S., U.K., or Canada) from coming to Canada for a speaking tour, even though no objection to his visa-free entry to Canada as a U.K. citizen had been raised by Canadian immigration officials.
Does the U.S. government think that journalists, scholars, and government staff are likely to conduct telepathic terrorist psy-ops against the U.S. from 30,000 feet if they are allowed to pass through our airspace? Or that if the bureaucrats at the DHS are genuinely afraid of this, the proper procedure for judging this risk shouldn’t be to present the evidence, if any, to a judge, in an adversary proceeding in which the person being adjudged can hear the charges and evidence against them, be heard in their own defense, and be entitled to due process including a presumption of innocence.?
As U.S. citizens, we extend our apologies for the actions of a U.S. government that doesn’t represent us in taking such actions, our commitment to continue our work to end such U.S. government lawlessness, and our offer of any assistance we can provide (limited though that is likely to be) to Ms. Gutiérrez and any others similarly situated and seeking explanations and redress.