Archive for the ‘Secret Law’ Category

Will the REAL-ID Act deny you access to Federal facilities?

Monday, June 22nd, 2015

As we’ve noted in our previous commentaries on the REAL-ACT in this blog and in our recent presentation at the Cato Institute, there are two components to the threats against individual residents of “noncompliant” states (and territories and the District of Columbia) that are being used by the DHS to try to induce reluctant state governments to incorporate their state drivers license and ID databases to the distributed national REAL-ID database by connecting them to the contractor-operated REAL-ID hub:

  1. Threatened denial of common carrier airline transportation to individuals who present drivers licenses or other ID credentials issued by noncompliant states; and
  2. Threatened denial of access to (certain) Federal facilities to these individuals.

The first of these threats appears to be hollow. The TSA has consistently argued, when demands for ID from air travelers have been challenged in court, that no ID credentials at all are required to fly.

The TSA claims the right to subject any traveler to more intrusive search and interrogation, without probable cause, and may use this arbitrary power against residents of states that don’t comply with the REAL-ID Act. But the TSA appears to realize that it has no legal authority for outright denial of air travel to people who don’t have, or decline to carry or show to the TSA or its contractors, government-issued ID credentials, REAL-ID Act compliant or not.

With respect to its threat to deny access to Federal facilities, the DHS (in its usual fashion of rulemaking by press release) has posted an announcement on its website that this will be implemented in phases determined by the “Federal Security Level” (FSL) assigned to individual facilities.

But what are the facilities, if any, to which these levels have been assigned, and to which individuals with ID from noncompliant states will therefore be denied access? We’ve filed a series of Freedom of Information Act requests to find out.

The responses to our FOIA requests suggest that this prong of the REAL-ID Act enforcement cattle prod is, to mix metaphors, a paper tiger. We’ve been unable to find any Federal facility to which such an FSL has actually been assigned.

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US again takes people off “no-fly” list to try to evade judicial review

Tuesday, June 16th, 2015

Four days before a Federal judge was scheduled to hear arguments in a lawsuit brought by four Muslim US citizens who were placed on the US government’s “no-fly” list to try to pressure them into becoming informants for the FBI, the government has notified the plaintiffs in the case that all of them have been removed from the no-fly list.

The plaintiffs in Tanvir v. Lynch are continuing to press their claims, as are other US citizens challenging their placement on the no-fly list in retaliation for declining to inform on their friends, families, communities, and fellow worshippers.  But we expect that, as has been its pattern, the government defendants will now try to get the case dismissed as “moot“.

So far as we know, every other instance in which the US government has told anyone whether or not they are or were on the no-fly list, or that they have been removed from that list, has come after the victims of these no-fly orders have challenged them in Federal court.

Either (1) the government never had any reason to think any of these people posed a threat to aviation, but never bothered to assess the basis, if any, for belief that they posed such a threat until faced with the imminent need to defend their blacklisting to a Federal judge. Or (2) the government genuinely (although mistakenly and without any adequate basis) believed that they posed a threat, but saw the possibility of judicial review of no-fly decisions as a greater threat to the standard operating procedures of the TSA, DHS, and FBI. Or (3) both of the above.

We’ll take Door Number 3, if you please.

TSA statements to court reviewing interrogations of travelers

Tuesday, June 2nd, 2015

In a filing with the Court of Appeals reviewing a TSA mandate for airlines to interogate passengers on international flights before allowing them to board, the TSA has directly contradicted previous explicit written statements by an official TSA spokesperson as to whether passengers are required by the TSA to answer questions from airline staff about their travel purposes as a condition of being allowed to fly.

Equally if not more disturbingly, the TSA also claimed in the same filing with the 11th Circuit Court of Appeals that an airline licensed by the US government to operate as a common carrier has “independent discretion to deny boarding to any passenger about whom they have a concern.”

In an email message in January of this year to “professional troublemaker” and frequent traveler Jonathan Corbett, the TSA “Office of Global Strategic Communicationsa Desk” said:

American Airlines is required to conduct a security interview with passengers prior to departure to the United States from an overseas last point of departure airport. If a passenger declines the security interview, American Airlines will deny the passenger boarding. The contents of the security program and the security interview are considered Sensitive Security Information (SSI).

But when Mr. Corbett petitioned the 11th Circuit Court of Appeals to review the TSA’s secret orders to airlines containing this mandate, the TSA filed the following statement with the court:

Interviews are … intended only to determine screening protocols before a passenger may fly. TSA does not direct U.S. aircraft operators to refuse to carry a passenger who declines participation in the interview process.

This isn’t the first time the TSA has told Federal judges that official TSA notices and public statements about what air travelers are “required” to do, as a condition of being “allowed” to exercise our right to travel, are false.

In 2006, the TSA told the 9th Circuit Court of Appeals panel reviewing the requirement for air travelers to show government-issued ID credentials in Gilmore v. Gonzalez that there is no such TSA requirement in the secret TSA security directives to airlines, despite notices still posted at TSA checkpoints (and, at the time, on the TSA website) that passengers are required to show ID. Most people who are unable and/or unwilling to show ID are allowed to fly, although some aren’t. There are no rules or publicly-disclosed criteria for who the TSA does or does not allow to fly.  The TSA’s orders to the airlines, and the airline policies approved by the TSA, are secret.

At a minimum, the TSA’s repeated disavowals in court of what it has publicly claimed or implied are TSA requirements mean that travelers cannot resoanably be expected to believe or rely on those official but not legally beinding TSA statements, and have good cause to demand that TSA explicitly state whether anything they ask is a legally-binding TSA “order”, a request, or an airline or or other private demand not mandated by the TSA. Noncompliance with requests not explicitly identified by TSA staff as TSA orders cannot reasonably construed as interference with, or refusal to submit to, TSA requirements.

The only way to reconcile the TSA’s statement to the court that “TSA does not direct U.S. aircraft operators to refuse to carry a passenger who declines participation in the interview process” with the agency’s previous statement to the public that, “If a passenger declines the security interview, American Airlines will deny the passenger boarding,” is that the airline — on its own initiative and inidepndently of the TSA-mandated and TSA-approved “security program” — has committed to the TSA that it will deny boarding to anyone whoi declines to answer the airline’s questions about their travels.

That possible interpretation is supported by the TSA’s further statement to the Court of Appeals:

While … carriers retain their independent discretion to deny boarding to any passenger about whom they have a concern, whether as a result of an interview or otherwise, that outcome is not dictated by the international security interview program.

The problems with this — aside from the TSA’s misleading statements to the public about the source of this “requirement” — are that an airline, by law, has no such discretion, and that the TSA is required by law (49 USC § 40101) to “consider … the public right of freedom of transit through the navigable airspace” in carrying out its responsibilities including approving airline policies.

The duty of the TSA, if it becomes aware of an airline policy or practice to exercise such unlawful “discretion” or claim the “right to refuse service”, is to disapprove the policy or practice. If an airline persists in such a practice, the duty of the TSA is to order the airline to discontinue to the practice or, if that is outside the TSA’s jurisdiction, to refer the airline to the Department of Transportation for the imposition of sanctions, which ultimately could include the revocation of the airline’s certification from the DOT to operate as a common carrier.

It’s bad enough that airlines are trying unilaterally to abrogate their responsibilities as common carriers. It’s far worse that the government is acquiescing in, much less encouraging, such practices.

DHS still playing politics with FOIA requests

Monday, May 18th, 2015

The latest response to one of our Freedom of Information Act (FOIA) requests confirms our suspicion that despite sworn testimony to the contrary to Congress by the DHS Chief FOIA Officer, the DHS has resumed, or never abandoned, its illegal practice of political interference and specially disfavored and delayed treatment of FOIA requests from journalists and activist organizations — including the Identity Project.

In 2005, the Associated Press discovered from the response to one of its FOIA requests for FOIA processing records that the DHS Chief FOIA Officer had ordered FOIA officers for the DHS headquarters and all DHS components (TSA, CBP, etc.) to flag all “significant” FOIA requests for special handling. “Significant” FOIA requests were to include, inter alia, any request on a controversial topic; likely to generate news coverage; or from a journalist, news organization, or activist organization (those terms being undefined in the order).

All planned actions on “significant” FOIA requests (acknowledgments of receipt, releases of responsive records, appeals, litigation, etc.) were to be reported in advance to the DHS “front office” for inclusion in a weekly report to the DHS White House liaison.  Crucially, both the general order and the memos accompanying the weekly reports when they were circulated to all DHS and component FOIA officers explicitly forbade the release of any records or any other response to a “significant” request without the express prior approval of the DHS “front office”.

Questioned about this before a Congressional oversight committee during the ensuing scandal, DHS Chief FOIA Officer Mary Ellen Callahan swore that these orders didn’t really mean what they appeared to say. This was merely an “awareness” or “notification” system, not really an approval system, Chief FOIA Officer Callahan claimed:

[T]o my knowledge, no information deemed releasable by the FOIA Office or the Office of the General Counsel has at any point been withheld.

The Chief FOIA Officer told Congress, under oath,  that the “notification” period had been reduced from indefinite to one day, and the default after one day, in the absence of “front office” action, had been changed from continued indefinite withholding to release of the response:

In fact, we continue to improve the system; DHS has now moved to a one-day awareness review for significant FOIA responses…. Significant FOIA releases are uploaded into a SharePoint system for a limited awareness review period – now one business day – and then automatically released by the relevant component FOIA office back to the requester.

But had anything really changed?  We got an answer last week, as we were attempting to find out when we should expect a response to one of our requests for information about the “Federal Security Level” (FSL) that determines the date of applicability of certain REAL-ID Act rules for access to Federal facilities.

We requested information about what, if any, FSL has been assigned to each of a sampling of Federal facilities in the San Francisco Bay Area, including symbolic targets and critical infrastructure (the Golden Gate and Bay Bridges), Federal courthouses and office buildings, and more. We’ll be publishing those responses, and our analysis of them, in a future article.

At its mid-point, the San Francisco-Oakland Bay Bridge passes (in a tunnel between the east and west high-level spans) through Yerba Buena Island, a Federal reservation which constitutes the US Coast Guard Station San Francisco. We asked for records about the FSL for Station San Francisco, including the Bay Bridge, and about the FSL for the (former?) NSA listening post at Two Rock Ranch in Sonoma County, which operates as USCG Training Center (”TRACEN”) Petaluma.

The Coast Guard is a partially military, partially civilian component of both the DHS and the Department of Defense. The DoD also has special rules for “significant” FOIA requests, but they are quite explicitly a notification system, not an approval system like the (former?) DHS system.  In any case, it appears that the Coast Guard generally processes FOIA requests in its civilian, DHS capacity.

Our request was submitted to USCG headquarters, but after some run-around was referred to local USCG FOIA Officers in San Francisco and Petaluma for their separate responses directly to us. So far, so good. We had several cordial conversations with Mr. Kevin Fong, the FOIA Officer for USCG Sector San Francisco. So far as we could tell, he seemed to be making a sincere effort to identify any records responsive to our request.

The week before last, Mr. Fong told us that he had been unable to identify any responsive records (which would seem to indicate that the Bay Bridge had never been assigned an FSL).  Mr. Fong said that he would be sending us formal notice of his failure to find any responsive records.

Since no responsive records had been found, there were no legal or interpretive issues that might have required higher-level consultation or decision-making regarding whether any of those records might be exempt from disclosure. No further “processing” of records was required, since there were no records to process. The statutory deadline for the Coast Guard’s response to our FOIA request had long since passed, and a response could and should have been provided immediately.

Instead, we got radio silence for another week. When we called Mr. Fong at the end of last week to find out what was holding up his response, he told us that our request had been designated as “significant”. No surprise there. We’re an educational and activist organization that takes an interest in controversial and newsworthy topics. So far as we know, all of our requests are designated as “significant” and included in the weekly reports to the DHS White House liaison.

Mr. Fong continued, however, that because our request was “significant” he had been required to submit his proposed response to national headquarters (whether of the USCG or of DHS wasn’t clear), and had been forbidden to provide his formal written response until he received approval from headquarters.  He had been waiting a week for that approval.

Assuming what Mr. Fong told us is true, this is exactly the practice that the DHS Chief FOIA Officer swore under oath before Congress had been ended five years ago.

We’ve called the attention both of Mr. Fong and of the USCG headquarters FOIA office to the discrepancy between the way our current request is being handled and the previous DHS claims about the alleged reform of the process for “significant” FOIA requests.

DHS responses to others of our pending FOIA requests may be similarly blocked, but we can’t tell for sure. An otherwise-complete response to another of our FOIA requests, two years overdue, is also being held up pending “final review”. For this request, however — unlike the request referred to the Coast Guard discussed above — we don’t know whether the review that is delaying the response the additional review and approval by the DHS “front office” required because =our request was deemed “significant”, or some other review.

We’re still waiting for any comment, or any official response to our original FOIA request.

Bill C-51 would match Canadian no-fly scheme to the US — and go further

Friday, April 17th, 2015

This week is Stop C-51 Week, marked by events throughout Canada and elsewhere in opposition to Bill C-51, currently under consideration by the Parliament of Canada, “An Act to enact the Security of Canada Information Sharing Act and the Secure Air Travel Act, to amend the Criminal Code, the Canadian Security Intelligence Service Act and the Immigration and Refugee Protection Act and to make related and consequential amendments to other Acts.”

We’ve joined a who’s who of civil liberties and human rights organizations, activists, and experts from Canada and around the world who have co-signed a letter to Prime Minister Stephen Harper opposing Bill C-51.

It’s only a slight oversimplification to say that Bill C-51 is Canada’s version of the USA Patriot Act, 13 years later but on steroids.  It appears to violate the Canadian Charter of Rights and Freedoms and Canadian obligations pursuant to several human rights treaties including the International Covenant on Civil and Political Rights (ICCPR).  But if enacted, and if not voided on constitutional grounds by Canadian courts, it would purport to authorize a wide range of government spying, “pre-crime” policing (profiling), and preemptive interference with the exercise of fundamental rights.

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Feds change no-fly procedures to evade judicial review

Thursday, April 16th, 2015

In updates filed with Federal courts in at least two pending challenges to US government “no-fly” orders, lawyers for the government have revealed plans for changes to the internal procedures administrative agencies use in deciding who they “allow” to fly — and who they don’t.

While these changes look like cosmetic but inadequate improvements, they actually include an obscure but much more significant change designed to make it harder for people on the no-fly list to get the factual basis (if any) for the decision to put them on the list reviewed by a judge.

By shifting official responsibility for administrative no-fly decisions from the FBI to the TSA, the government hopes to bring those decisions fully within the scope of a special Federal jurisdictional law, 49 U.S.C. § 46110, which is designed to preclude any effective judicial review of TSA decisions.

This law allows TSA administrative orders to be reviewed only by Courts of Appeal (which have no ability to conduct trials or fact-finding), on the basis of the “administrative record” supplied to the Court of Appeals by the TSA itself.  The Court of Appeals is forbidden to second-guess the TSA’s fact-finding, even if it was made through a secret and one-sided internal process: “Findings of fact by the Secretary, Under Secretary, or Administrator, if supported by substantial evidence, are conclusive.”  As long as there is substantial evidence in the record constructed by the TSA to justify its actions, the Court of Appeals is forbidden to consider the weight of contrary evidence, even if it is also in the record.  And the TSA is free to decide that evidence submitted by anyone on the no-fly list is, for that very reason, not credible.

No-fly cases have been considered by District Courts, and one of them has gone to trial, only because the FBI (as the agency nominally responsible for the inter-agency Terrorist Screening Center) has been declared by both TSA and FBI to be the agency officially responsible for no-fly decisions.  When FBI decisions are challenged by people who claim their rights have been violated, those decisions are reviewed in the normal manner by District Courts that can conduct trials, hear testimony, receive evidence, and make their own findings of fact — without being required to rely exclusively on self-serving submissions by the FBI itself.

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Why did the TSA prevent these people from flying?

Thursday, April 9th, 2015

Documents newly released to us by the TSA strongly suggest that the TSA has been lying about whether people are “allowed” by the TSA to fly without showing ID, and that decisions about whether to allow travelers to fly without ID are being made arbitrarily, on the basis of irrelevant and unreliable commercial data and/or at the “discretion” of individual field-level TSA staff.  The TSA documents also show that, at least for the limited sample of data initially released, the “false-positive” rate of watch-list matches is 100%.

The TSA has for many years been contradicting itself, both in word and in deed, as to whether travelers are required show government-issued (or any other) ID credentials in order to fly, or whether it is possible to fly without ID.

TSA signs at airports say that passengers are “required” to show ID. But the TSA has repeatedly told courts at all levels — from in camera (secret) submissions to the 9th Circuit Court of Appeals in Gilmore v. Gonzales in 2006 to public testimony of the TSA’s witness in the (unsuccessful) state court frame-up of Phil Mocek in Albuquerque in 2011 — that these and other official TSA notices to passengers are false, that ID is not required to fly, and that the TSA does have (secret) “procedures” that allow people to fly without having or showing ID.

The TSA’s actions are equally bipolar.  People who say they have lost their ID cards or had them stolen are “allowed” to fly every day.  But people who the TSA deems (for secret or not-so-secret reasons, or completely arbitrarily) to  be”suspicious” or “uncooperative” are routinely subjected to retaliation and summary sanctions including denial of  their right to travel.  Mr. Mocek, for example, was both prevented from boarding the flight for which he had a valid ticket, and falsely arrested by local police at the behest of TSA staff, when he tried to fly without ID and to document the process that the TSA claimed would have allowed him to do so.

What’s the real story? From our close reading of the available evidence, it appears that:

  1. There are no publicly-disclosed “rules” (and probably not even any unambiguous secret rules) defining what is or is not permitted or required of travelers at TSA checkpoints, or what conditions the TSA imposes on the exercise of the right to travel by air.
  2. The TSA claims to have the legal authority, and in practice exercises actual power, to determine who to allow to fly, and who not to allow to fly, in an entirely secret, standardless, and arbitrary manner, at its sole discretion, which discretion is often delegated to front-line TSA staff.

How does this work in practice? We are just beginning to find out.

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Where can you complain if your human rights are violated?

Wednesday, April 8th, 2015

As we’ve been pointing out for years, the right to travel is not just a right under the First Amendment to the US Constitution (”the right of the people… peaceably to assemble”) but a human right guaranteed by an international treaty ratified by the US (”the right to freedom of movement”).

But what good is a “human right” guaranteed by international treaty if there is no independent entity to which you can complain, and which has the authority to enforce your rights?

At a minimum, what’s needed is the ability of people whose human rights have been violated by the US government to seek redress through US courts, and the ability of those courts to order the government to comply with its treaty obligations.

Given the US government’s current interpretation of many human rights treaties as not being “self-effectuating”, that would require legislation by Congress to effectuate those treaties by creating a cause of action for treaty violations and give US courts jurisdiction to hear such complaints.

That’s exactly what the UN Human Rights Committee concluded a year ago, following its periodic review of US implementation of the International Covenant on Civil and Political Rights (ICCPR):

The State party [i.e. the US] should … Taking into account its declaration that provisions of the Covenant are non-self-executing, ensure that effective remedies are available for violations of the Covenant, including those that do not, at the same time, constitute violations of U.S. domestic law, and undertake a review of such areas with a view to proposing to the Congress implementing legislation to fill any legislative gaps.

In the year since this recommendation from the UNHRC, neither the Administration nor any member of Congress has proposed such effectuating legislation for the ICCPR or any other human rights treaty.

So in the meantime, where can you turn if your human rights are violated by the US government?

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You can’t tell the travelers without a scorecard

Tuesday, March 31st, 2015
The TSA uses appearance profiles to decide whether to search you and/or your luggage, interrogate you, call the police, or allow you to fly. (Diagram from GAO report.)

Point scores assigned by TSA "Behavior Detection Officers" are used to decide whether to search you or your luggage, interrogate you, call the police, or allow you to fly. (Diagram from 2013 GAO report. Click image for larger version.)

The Intercept has published the scorecard used by TSA “Behavior Detection” precogs to assign points to travelers, as part of the TSA’s “SPOT” pre-crime scheme for deciding which travelers to subject more intrusive search and/or interrogation or “refer” to local police:

Whether you call SPOT and the TSA’s other pre-crime profiling programs “junk science”, “culturally biased”, or simply “unconstitutional”, it’s clear that the TSA can’t tell the terrorist travelers with or without a scorecard.

The SPOT scorecard includes pairs of, “Damned if you do, damned if you don’t,” point categories. “Avoids eye contact with security personnel or LEO [Law Enforcement Officer]“? +1 point. On the other hand, “Cold penetrating stare” or “Widely open staring eyes”? +2 points.

Disturbingly, some of the largest point values are assigned for the exercise of First Amendment rights to express opinions, ask questions, and observe what is in plain sight: “Asks the BDO [Behavior Detection Officer] security-related questions”? +3 points. “Shows arrogance and verbally expresses contempt for the screening process”? +2 points. “Scans area, appearing to look for security personnel or LEO”? +2 points.

In what appears to be flagrant discrimination against people with disabilities, anyone attempting to communicate in sign language is severely penalized: “Exhibiting hand gestures to others”? +3 points.

Part of the scorecard is broken down into “Stress”, “Fear”, and “Deception” categories. Stress and fear would seem to be natural responses to being profiled, judged, interrogated, and groped by government agents in cop-like uniforms who claim discretionary and deliberately unpredictable power to stop us from exercising our rights.  What traveler anywhere in the world doesn’t tense up when they are stopped at a checkpoint, and breathe a sigh of relief when they have made it through?

Points are also assigned for attributes having nothing to do with these factors, and which cannot lawfully be construed as constituting a reasonable basis for suspicion sufficient to justify search or detention.

Are you one of a party of, “Males traveling together who are NOT part of a family”? +1 point. Take that, pairs of traveling salesmen, and pairs of Mormon Elders on a mission! Do you appear to be a “Member of a family”?  -2 points. What’s a “family”? And how can the TSA tell?

Possession of duct tape “which the passenger has no apparent reason to possess”? +1 point. Isn’t the reason to carry duct tape that you never know for what purpose you will need it?

Cash is considered presumptively and for outbound international travelers conclusively suspicious. Possession of, “Large sum of monies leaving U.S.”, or “Large sum of monies with no apparent reason to possess”? Automatically notify a law enforcement officer.

Some of the scoring categories appear to be purely cultural or fashion bigotry: “Face pale from recent shaving of beard”? +1 point.  Others show age and/or gender bias: “Facial flushing while undergoing screening”? +1 point. So much for any woman who happens to have a hot flash at a checkpoint. “Apparent married couple with both spouses over 55 years old”? -2 points.

The Intercept quotes two unnamed former TSA “Behavior Detection Officer” managers. One says the scorecard is, “designed in such a way that virtually every passenger will exhibit multiple ‘behaviors’ that can … justify BDO interaction with a passenger. A license to harass.” Another describes the SPOT porgram as, “Bullshit. Complete bullshit.”  We couldn’t have said it better.

“Naked American Hero” goes to court

Monday, March 16th, 2015

John Brennan, the “Naked American Hero” who took off all his clothes at a TSA checkpoint at the Portland, Oregon airport, will finally have his day in a Federal court more than three years later.

Mr. Brennan was (falsely) arrested by Portland city police, acting at the behest of the TSA checkpoint staff, on April 17, 2012.  He was acquitted of criminal charges by a local judge, since nudity as a form of political expression has been held to be protected by Oregon’s state constitution.

But the TSA assessed a $500 administrative fine against Mr. Brennan for “interfering with screening”, notwithstanding both the Oregon court’s finding that his action was form of protected political expression and the fact that he never interfered with anyone at the TSA checkpoint. It was the TSA staff who chose not to search Mr. Brennan’s clothes after he took them off, not to complete his “screening” once they could see that he wasn’t carrying any weapons or explosives, and to shut down the entire checkpoint.

The TSA’s administrative decision to fine Mr. Brennane followed a kangaroo-court administrative hearing (held in a courtroom rented for the day from the US Bankruptcy Court), a decision by a so-called Administrative Law Judge (not actually a judge, but a DHS staff person rented from the US Coast Guard), and an administrative appeal to a TSA decision-maker designated by the head of the agency.

Throughout these administrative proceedings, the TSA and other DHS staff were forbidden to consider the Constitutionality or validity of the TSA’s regulations or actions.  Only after jumping through three years of these hoops is Mr. Brennan entitled to have a real judge of a real court assess whether the TSA acted lawfully or had any authority to impose a fine for actions such as Mr. Brennan’s.

In an effort to frustrate even this belated judicial review, Congress requires that it be conducted by a Federal Circuit Court of Appeals, based on “deference” to the TSA and the TSA-supplied “administrative record” rather than an actual trial or any fact-finding by the Court of Appeals. (Our Freedom of Information Act request for the administrative record of the TSA’s proceedings with respect to Mr. Brennan is still pending and unanswered after almost two years.) But the Court of Appeals can now finally, at this stage, consider Constitutional and other objections to the legality of the TSA’s actions.

On November 14, 2014, Mr. Brennan filed a petition with the 9th Circuit Court of Appeals for that court to review the TSA’s order assessing a $500 fine against Mr. Brennan. The case in the 9th Circuit is John Brennan v. US DHS and TSA, docket number 14-73502.  Mr. Brennan is represented in the 9th Circuit by Michael Rose of Portland, the same attorney who successfully defended Mr. Brennan against the state and local criminal charges.

On March 2, 2015, Mr. Brennan’s attorney filed his brief asking the Court of Appeals to void the TSA fine, making the arguments he wasn’t allowed to make in the TSA administrative proceedings regarding the unconstitutional vagueness and other defects in the TSA’s regulations and actions.  Mr. Brennan’s brief was accompanied by excerpts from the TSA administrative record, although most of that record continues to be improperly withheld from disclosure by the TSA despite our FOIA request.

Following a written response from the DHS and TSA (the government has already asked for, and been granted, an extension of time), and a written reply from Mr. Brennan, the 9th Circuit will decide whether to schedule oral argument or make a decision solely on the basis of the written arguments.

Mr. Brennan is continuing to pay for his own legal representation. There’s more information here about how you can contribute to his legal defense and help spread the word about his case.