Despite admitting that it was “too soon to speculate about any connection between these stolen passports and the missing plane,” Interpol officials did not hesitate to use the fact that two passengers on the missing Malaysian Airlines flight used stolen passports as the opportunity to step up its longstanding campaign for a global travel control system in which all travelers worldwide will be required to: (a) show standardized government-issued travel credentials, and (b) have those credentials “vetted” against a global blacklist maintained by Interpol, before being given permission to buy an airline ticket or “open a bank account, rent a car or check into a hotel”.
Archive for the ‘Surveillance State’ Category
Following two days of face-to-face public questioning (Day 1, Day 2) of a US government delegation earlier this month, the UN Human Rights Committee (UNHRC) has published its concluding observations on US implementation of the International Covenant on Civil and Political Rights (ICCPR).
The UNHRC’s concluding observations include a strong endorsement of our call for Congress to enact legislation to “effectuate” the ICCPR by making the treaty enforceable by US courts, particularly where violations of the ICCPR do not constitute violations of any other US law. As one of its key recommendations, the UNHRC says that:
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.
At the end of a press conference announcing the UNHRC’s concluding observations concerning the US, UNHRC Chairperson Nigel Rodley had this to say about committee’s review of US implementation of the ICCPR the need for judicial enforcement and accountability for human rights violations:
Of course they [the US government's representatives] stressed the improvements they’ve made, so that people wouldn’t be doing the same things in the future. But absolutely not — there was no suggestion that any of those responsible for any of the past criminal violations of our Covenant [i.e. the ICCPR] would be brought to justice or that its victims would have access to their day in court.
The UNHRC’s concluding observations recommend that, “The responsibility of those who provided legal pretexts for manifestly illegal behavior should also be established.”
We won’t hold our breath for Congress to act, but we hope that this recommendation from the only independent body officially empowered to review the state of human rights treaty compliance by the US will prompt members of Congress to consider sponsoring legislation to create a cause of action for violations of the ICCPR and give US courts jurisdiction to hear such complaints.
The UNHRC also criticized US mass surveillance, but mentioned only communication surveillance and metadata and not the closely related issue of NSA and DHS mass surveillance of travel metadata.
Questioning of a US government delegation by the UN Human Rights Committee (UNHRC) concerning US implementation of the International Covenant on Civil and Political Rights (ICCPR) continued today in Geneva.
Many of the same issues as were raised in yesterday’s first round of questions from members of the Human Rights Committee continued to be pursued in today’s follow-up questioning, along with other concerns including NSA surveillance and collection of communications metadata.
But as the day went on, there was an increasing focus on the “meta-issues” of applicability, enforceability, and remedies and redress for violations of the rights guaranteed by the ICCPR:
- Does the US accept that everyone subject to US jurisdiction is entitled to human rights, as the Human Rights Committee and almost every other party to the ICCPR (except Israel) interprets the treaty to mean? Or does the treaty only apply to US actions within its borders, allowing the US to violate human rights abroad with impunity?
- In light of the US interpretation of the ICCPR as not being “self-executing”, and the failure of Congress to enact effectuating legislation to enable the treaty to be invoked in US courts, what “effective” means of judicial redress (as required by the ICCPR itself) are available to those whose human rights are violated, especially if those violations of the ICCPR don’t also constitute violations of domestic US law?
This latter point, raised today by at least four members of the UNHRC, was one that we had taken the lead in asking the UNHRC to address, through both an initial and a supplemental submission to the UNHRC in advance of this week’s session.
The head of the US government delegation, Mary McLeod of the State Department, responded to these questions today by telling the UNHRC that the US “sees no need” to allow the ICCPR to be invoked in US courts.
Her implicit message, and that of the other members of the US delegation in their responses to questions about specific issues, was that internal administrative measures provide an adequate substitute for judicial oversight or enforcement of human rights obligations.
But many of those claims about administrative “remedies” rang hollow:
- DHS Officer for Civil Rights & Civil Liberties Megan Mack, who has been officially designated as responsible for implementation of the ICCPR by the DHS, said that her office “enforces” DHS administrative standards for use of deadly force by US Customs and Border Protection officers. But she didn’t mention that her office is purely advisory, and has no authority to order any sanctions against CBP officers or any other DHS employees or contractors.
- Ms. Mack told the UNHRC that her office “receives complaints” of violations of the ICCPR by DHS components, which is true. But she didn’t tell the UNHRC that some of those complaints, including some of ours, have been pending with her office for years without any response. Nor did she mention that her office has claimed that violations of the ICCPR were “authorized” by US law, suggesting a profoundly mistaken belief that the US can derogate from its treaty obligations by enacting domestic statutes.
- Roy Austin, Jr., Deputy Assistant Attorney General and head of the Civil Rights Division of the Department of Justice, told the UNHRC how important it is to ensure that people who believe their human rights have been violated have a place to complain, and receive a response to their complaint. But he didn’t disclose to the UNHRC that — as we learned in response to one of our FOIA requests — his Department has no record of ever having designated a point of contact for such complaints, or of ever having responded to any of them.
- Deputy Assistant Attorney General Bruce Swartz talked about Attorney General Holder’s policy that his “Department will not defend an invocation of the [state secrets] privilege to conceal … administrative error”, but didn’t mention that A.G. Holder personally signed a sworn declaration to the court in the first “no-fly” trial, explicitly quoting that policy while invoking the state secrets privilege to try to prevent the plaintiff, who the government admitted posed no danger, from learning or obtaining redress for her having been placed on the “no-fly” list as a result of what the government admits was a mistake by an FBI agent who checked the boxes on a form he was supposed to un-check and un-chekked the boxes he was supposed to check.
Throughout the day, there was much talk of “guidelines” and “policies”, but little talk of laws or of whether practices conform to aspirational administrative “guidance”.
The UNHRC is expected to issue its report on US implementation of the ICCPR , in the form of “concluding observations” from its review, on March 27th.
Public questioning by the UN Human Rights Committee (UNHRC) of a delegation from the US government on the subject of US implementation (or not) of the International Covenant on Civil and Political Rights (ICCPR) began today in Geneva, Switzerland, and will continue tomorrow. The proceedings are part of the periodic review of each party to the ICCPR, which the treaty itself mandates be conducted every five years by the UNHRC.
The UNHRC consists of independent individual experts, not representatives of national governments as in the confusingly similarly-named UN Human Rights Council. The ad hoc 32-member US delegation consists of high-level but not top-level officials (e.g. the Acting Deputy Assistant Secretary of Homeland Security for Policy) from half a dozen Federal executive (administrative) agencies led by the Department of State, along with officials from one state (Mississippi) and one municipal (Salt Lake City, UT) government.
With well-designed symbolism, the members of the the US government delegation and the UN Human Rights Committee, facing each other across the central well of the circular Salle XVIII in the UN’s “Palais des Nations”, were almost encircled by rising rings of observers from an NGO delegation of unprecendented size and diversity. Almost 100 human rights activists, mainly from the the USA but also from other countries where people are concerned about human rights violations in the US and by the US government, came to the UNHRC session. Many more organizations who couldn’t afford to attend the session in Geneva in person made written submissions in advance to the UNHRC of suggestions for issues, questions, and “concluding observations”.
Members of the UNHRC welcomed the NGO presence — unprecedented in scale and diversity — despite describing it in their opening remarks as “overwhelming”. Human rights aren’t just an issue for women or for people of color, and the US rainbow is well represented. But it says a great deal about the unbalanced gender and racial burdens of human rights violations in the US that perhaps 80% of the US NGO delegation are women and a similar percentage are people of color. Traditional leaders and tribal governments of Native Americans, Native Alaskans, and Native Hawaiians are also in attendance, lumped together by UN procedural rules with “non-governmental” organizations.
The proceedings today were webcast, as those tomorrow will be, and will also be archived for streaming on demand. “Every animal is equal,” UNHRC Chair Nigel Rodley quipped as he called today’s session to order, “But not every animal can get UN TV to the Human Rights Committee,” a small and normally quiet corner of the complicated system of UN treaty bodies. But this is the US, and no other country’s actions have such extraterritorial impacts, good or bad, on the human rights of people around the world.
The UNHRC is authorized by the ICCPR to issue “Concluding Observations” after its review of each country’s implementation of the treaty, but has no power to enforce its recommendations. Despite this major limitation, the extreme reluctance of the US to accept any external oversight over its actions leaves the UNHRC as the sole international body with the authority to compel the US government, on a regular basis (albeit for only two days every five years), to respond publicly to cross-examination about its human rights record.
For those tuning in for the first time to the UN TV webcast today and tomorrow, it may seem like this is the culmination of the process of review of the US by the UNHRC. At first glance, it might even look like the public dialogue between the UNHRC and the US government is “the review”.
But those of us who’ve been part of the process know that this week’s events in Geneva are neither its start nor its end. (more…)
Today and tomorrow in Geneva (early Thursday and Friday morning in the USA), a delegation from the US government will be questioned publicly by members of the UN Human Rights Committee about US implementation of the International Covenant on Civil and Political Rights (ICCPR).
Here’s the schedule of the webcast public questioning:
- Thursday, March 13, 15:00-18:30 Geneva time (7 am-10:30 am PDT, 10 am-1:30 pm EDT)
- Friday, March 14, 10:00-13:00 Geneva time (2 am-5 am PDT, 5 am-8 am EDT)
- tentative additional session Friday, March 14, 14:00-17:00 Geneva time (6 am-9 am PDT, 9 am-noon EDT)
This is neither the first nor the last step, but a critical step, in the review conducted by the Human Rights Committee every five years (as with each other country that is a party to the treaty) of US implementation of this international human rights treaty.
We’ll have more details after the sessions, but here are some quick links for those tuning in to the webcast:
- Live webcast
- Webcast archive (we’ll update this link if/when a direct link becomes available)
- Background documents (including links to submissions by NGOs)
- List of issues (members of the Human Rights Committee may also ask about other issues)
- Schedule (subject to change — additional questioning of the US may be added on Friday after lunch)
- Members of the UN Human Rights Committee
- Members of the US government delegation
- Submissions from the Identity Project on freedom of movement and other issues (summary)
- Updates from the Identity Project
- Text of the ICCPR (including Article 12 on freedom of movement)
- General Comment No. 27 by the UNHRC on freedom of movement under Article 12 of the ICCPR
At first blush, a lawsuit filed last week by the ACLU on behalf of a sociology professor at Indiana University wrongly detained by U.S. Customs and Border Protection seems to be about whether CBP is exceeding the limitations on its police powers, and detaining US citizens for purposes unrelated to customs and borders.
That’s bad, but unsurprising in light of the history of abuse of limited administrative search powers as a pretext for unrelated police purposes by CBP and other DHS components, notably the TSA.
What’s more unusual, however, is the complaint that the DHS is using email messages, presumably obtained from the NSA (unless the DHS has some email interception program of its own) as the basis for detention and interrogation of US citizens who aren’t trying to travel or ship any goods across US borders.
And what was the subject of this warrantless custodial interrogation of a non-traveling US citizen by armed “Customs and Border Protection” officers, based on email intercepts? Her sex life.
No, we’re not making this up.
Professor Christine Von Der Haar of Indiana University tells the story in her complaint, in an interview with the Bloomington Herald-Times in 2012 at the time of the bizarre CBP doings that led to her lawsuit, and in a video interview with the Indianapolis Star last week when the lawsuit was filed.
A few years ago, Dr. Von Der Haar, a US citizen, reconnected online with Dimitris Papatheodoropoulos, a Greek freelance transport and logistics manager and consultant who she had been friends with as a teenager, 40 years earlier, at an international school they both attended in Switzerland. After a year’s exchange of email, some of which Dr. Von Der Haar says was “flirtatious and romantic in nature”, Mr. Papatheodoropoulos arranged for a visit to Dr. Von Der Haar in Bloomington during her summer break from university teaching.
Von Der Haar believes her friend is a victim of a cultural misunderstanding. His emails signed off “I love you. I miss you. I kiss you.” Marriage, though, was beyond the pale for two adults in their mid-50s who hadn’t seen each other for decades, they say.
Sure, his language is flowery, but Von Der Haar laughs about it, slightly embarrassed: “We’re silly. He’s a Greek man. What can I say?.”
Mr. Papatheodoropoulos obtained a 10-year, multiple entry B1/B2 business and tourism visa to the US, allowing him to consult with business associates and negotiate contracts as well as visit friends. Since he works as a freelancer, and wasn’t sure how long he would be staying in the US, he shipped a computer and some other electronic equipment by air freight, but removed the hard drive with his data and carried it with him.
On arrival, Mr. Papatheodoropoulos cleared US customs and immigration and was admitted to the US without incident. But when Dr. Von Der Haar took him back to the Indianapolis airport a few days later to pick up the items he had shipped by air freight, they were referred to the CBP office at the airport.
According to Dr. Von Der Haar’s complaint, armed CBP officers detained both her and Mr. Papatheodoropoulos, took them into separate rooms, and stood blocking the exit door while they interrogated Dr. Von Der Haar about, “the nature of her relationship with Mr. Papatheodoropoulos … the contents of email messages that Dr. Von Der Haar and Mr. Papatheodoropoulos had sent each other … [and] if she and Mr. Papatheodoropoulos were having sexual relations.”
Given that Mr. Papatheodoropoulos had retained his hard drive that contained the emails, the only way that the Customs and Border Protection Agents could have reviewed the emails is for someone to have surreptitiously monitored the communications between Dr. Von Der Haar and Mr. Papatheodoropoulos and reported those communications to the agents questioning her. Defendant Lieba admitted that employees of the United States had read email communications between Dr. Von Der Haar and Mr. Papatheodoropoulos.
Dr. Von Der Haar was taken into the back room of the CBP office for questioning twice, for a total of about half an hour, while Mr. Papatheodoropoulos was questioned for “approximately 4 1/2 - 5 hours” before he emerged and was allowed to leave. His Greek passport (property of the Greek government) was confiscated without warrant, leaving him unable to leave the US even had he decided to cut his visit short, and he was “served with notice that a proceeding was initiated against him for removal from the United States” on the basis that:
You obtained your B1/B2 visa by misrepresenting your intentions to come to the United States to wit; It is your intention to immigrate to the United States, you abandoned your foreign residence, you intend to overstay your admission to the United States.
“None of this was true” according to the complaint. Mr. Papatheodoropoulos requested an expedited trial on these allegations, but “the removal action did not proceed. His passport was returned to him and he left the United States at the end of August of 2012 and has not returned.”
What are we to make of this episode?
First, CBP officers grossly exceeded their jurisdiction. Dr. Dr. Von Der Haar’s US citizenship was never questioned; she wasn’t trying to enter, leave, or ship and goods in or out of the country; and she was never accused of any crime. In general, immigration (as distinct from customs) offenses are handled by Immigration and Customs Enforcement (ICE) and the Border Patrol, not CBP. We’re curious what basis CBP will claim for its officers’ authority to detain and interrogate Dr. Dr. Von Der Haar or obtain her email.
Second, unless this incident has exposed some previously unsuspected DHS email interception program, it seems likely that CBP obtained copies of email between Dr. Dr. Von Der Haar and Mr. Papatheodoropoulos from the NSA. We know that the NSA is copying and archiving as much email as it can get its hands on. But was this email traffic flagged by the NSA as being of interest, and brought to the attention of the DHS? Or did the DHS ask the NSA to retrieve these email messages from the NSA archives, and provide them to the CBP? When, how, and on what basis, does the NSA “share” its email intercepts with the DHS?
We look forward to learning more. We won’t be surprised, though, if the government claims that intercepting email messages on grounds of “national security” and then handing them over to another government department in order to detain and interrogate an innocent US citizen about her sex life is a “state secret”.
In a live online question-and-answer session last month, NSA whistleblower Edward Snowden gave this explanation of what’s wrong with pervasive, suspicionless tracking and logging of our activities:
The worst and happening-right-now harm of bulk collection — which again, is a euphemism for mass surveillance — is two-fold.
The first is the chilling effect, which is well-understood. Study after study has show that human behavior changes when we know we’re being watched. Under observation, we act less free, which means we effectively *are* less free.
The second, less understood but far more sinister effect of these classified programs, is that they effectively create “permanent records” of our daily activities, even in the absence of any wrongdoing on our part. This enables a capability called “retroactive investigation,” where once you come to the government’s attention, they’ve got a very complete record of your daily activity going back, under current law, often as far as five years. You might not remember where you went to dinner on June 12th 2009, but the government does.
The power these records represent can’t be overstated. In fact, researchers have referred to this sort of data gathering as resulting in “databases of ruin,” where harmful and embarrassing details exist about even the most innocent individuals. The fact that these records are gathered without the government having any reasonable suspicion or probable cause justifying the seizure of data is so divorced from the domain of reason as to be incapable of ever being made lawful at all, and this view was endorsed as recently as today by the federal government’s Privacy and Civil Liberties Oversight board.
Fundamentally, a society in which the pervasive monitoring of the sum of civil activity becomes routine is turning from the traditions of liberty toward what is an inherently illiberal infrastructure of preemptive investigation, a sort of quantified state where the least of actions are measured for propriety. I don’t seek to pass judgment in favor or against such a state in the short time I have here, only to declare that it is not the one we inherited, and should we as a society embrace it, it should be the result of public decision rather than closed conference.
Most of the reporting on Mr. Snowden’s revelations has focused on the NSA’s collection and use of communications “metadata”: not the content of our phone calls and email messages, but information about the movements of those messages, such as from whom, to whom, and when they were sent.
But communications (message movement) metadata isn’t the only category of movement metadata being collected by the NSA. Documents leaked by Mr. Snowden reveal that the NSA is also hacking into airline reservation systems to collect what we would call, “travel metadata”: information about the movements of our physical bodies, such as from where, to where, and when we traveled. And of course, the DHS is also collecting this sort of data, and compiling it into lifetime “personal travel history” files.
Do you want the government to be able to demand an explanation, years later, of every trip you have taken, when, where, why, and with whom, even if at the time it was a perfectly legal journey and you were under no suspicion? We’ve been questioned by US border guards about innocuous years-old entries in our Automated Targeting System files, and it’s a disturbing experience. (It would have been even more creepy if we hadn’t previously requested and obtained our files, so we knew at least part of what was in the records about which we were being questioned.) That potential is inherent in any collection and retention of travel metadata.
Both message movement metadata and personal movement metadata are important, and neither should be the subject of government surveillance without a warrant supported by probable cause.
You might think that information about the movements of our physical bodies would be considered more intimate, and subject to greater protection, than information about the movements of our messages. In the US, however, none of the limited protections against communications surveillance apply to travel surveillance, except to the very limited extent that reservation messages are protected by wiretapping laws.
We’ll be in Geneva next month talking to the UN Human Rights Committee about how US government surveillance and control of travel violates the International Covenant on Civil and Political Rights. Other human rights organizations including Privacy Internatrional and Human Rights Watch will be talking to the Human Rights Committee about NSA surveillance of communications metadata. We think the same International Principles on the Application of Human Rights to Communications Surveillance should be applied to travel surveillance and travel metadata collection.
Secretary of Homeland Security Jeh Johnson has cancelled a request for proposals for a contract for the DHS to get access to vehicle location logs compiled by a commercial data aggregator from automated (optical character recognition) license-plate readers. The solicitation for bids was cancelled less than 24 hours after the first reports on the plan by mainstream news media, which prompted immediate public outrage. The DHS now claims that the RFP was issued without the awareness of agency “leadership”.
We’re pleased to see the DHS forced by public pressure to suspend, at least for now, even this small part of its plans to expand the suspicionless surveillance and logging of of our movements throughout the country.
At the same time, it’s critical for the public to understand that while the DHS has (at least for the time being) withdrawn its proposal to pay a contractor use commercial vehicle location logs for DHS purposes, the DHS itself continues to compile and maintain its own secret database of vehicle location logs compiled from its own license-plate scanners.
The court was cleared at least ten times during the week-long trial for testimony, introduction of evidence, and legal arguments that the government claimed had to be kept secret. Many of the documents, exhibits, declarations, legal briefs, and even the judge’s opinion remain sealed, in whole or in part. Key information has to be pieced together by reading between the redactions, or from passing mentions in open court, the meaning of which only becomes clear in light of other fragmentary revelations.
Most mainstream media didn’t cover the trial, covered it only from the written record, or attended only small portions of the proceedings. We attended and reported on as much of the trial as was open to the public, but at times, we were the only reporter or member of the public in the courtroom.
The government still has until March 14th to decide whether to appeal, and the remaining sealed portions of the judge’s opinion aren’t scheduled to be released until April 15th. Key portions of Judge Alsup’s findings including what happened to Dr. Ibrahim’s US-citizen daughter are still secret. But in the meantime, what are our key takeaways from this trial?
(1) Congress needs to close the loopholes in the Privacy Act, which was enacted in 1974 to prevent exactly this sort of injustice, and would have done so but for its exemptions, exceptions, and lack of enforcement.
The purpose of the Privacy Act was to prohibit the government from using secret files as the basis for decisions about individuals, without allowing the subjects of those files to inspect and correct them. But agencies are allowed to exempt entire systems of records from these requirements. The DHS and the FBI (keeper of the Terrorist Screening Database which includes the “no-fly” list) have exempted their watchlists and blacklists and the allegedly derogatory information on which watchlisting and blacklisting decisions are based. In addition, although privacy is a human right protected by international treaty, the Privacy Act only protects U.S. citizens and residents. Other foreigners have no rights under this law, even when the U.S. government is using secret files to make decisions about their exercise of their rights.
(2) The watchlisting form and process incorporates presumptions in favor of surveillance and restrictions on travel, rather than presumptions of innocence and of travel as a right.
As was made clear in the latest redacted version of Judge Alsup’s findings, Dr. Ibrahim was placed on the “no-fly” list because FBI Agent Kelley left the box on the “nomination” form for “no-fly list ” blank:
This negative check-off form might look like poor user-interface design, but it actually exposes the real mindset of those who believe that travel is a privilege for which the traveler bears the burden of justification: “Better to restrict the rights of innocent people than to leave anyone off the watchlist.” Once the threshhold decision to place a name on a “watchlist” is made, the default is a categorical ban on all air travel and the widest possible dissemination of the blacklist information to other agencies and other countries’ governments (TUSCAN to Canada and TACTICS to Australia).
(3) There are no meaningful internal or administrative safeguards on no-fly and watchlist decisions. Administrative agencies cannot police their own secret internal actions. Transparency and independent judicial review are the only way to safeguard rights.
The DHS and FBI have claimed that internal administrative reviews of watchlist “nominations” are adequate safeguards against wrongful agency actions, and make judicial review unnecessary. In this case, Agent Kelley’s mistake was obvious on inspection, and would have been detected as soon as anyone checked whether the action ordered by the form was supported by the rest of the file. Nobody did so until after Dr. Ibrahim had been arrested and further mistreated when she tried to check in for her flight. If anyone “reviewed” or approved Agent Kelley’s nomination of Dr. Ibrahim to the no-fly list, they rubber-stamped the form without ever looking at the rest of the file, much less making an independent assessment of the factual basis for the decisions. This was the essence of Judge Alsup’s due process findings.
(4) The problem is not limited to the “no-fly list”, and there is no clear line between a “watchlist” and a blacklist. You can’t build a system of surveillance and individualized dossiers without it inevitably having consequences for people’s lives. The travel dataveillance system needs to be dismantled, and the whole database needs to be purged.
In the portion of her closing arguments conducted in open court, Dr. Ibrahim’s attorney, Ms. Elizabeth Pipkin, stated that Dr. Ibrahim and her daughter, Ms. Raihan Mustafa Kamal, had “the same status on the no-fly list”.
Presumably that common status was that neither woman was on the no-fly list. The government claimed that its “mistake” (in placing Dr. Ibrahim on the no-fly list) was corrected the same day as her arrest in 2005, and that it had not prevented Ms. Mustafa Kamal from flying to San Francisco to attend and testify at her mother’s trial.
Neither Dr. Ibrahim nor Ms. Mustafa Kamal are on the “no-fly” list. But when FBI Agent Kelley’s mistake in putting Dr. Ibrahim on the no-fly list was corrected, she was moved to, or left on, one or more watchlists — as Agent Kelley had intended. At some point Ms. Mustafa Kamal was also placed on one or more watchlists. Agent Kelly’s reasons for his intended decision to place Dr. Ibrahim (and perhaps Ms. Mustafa Kamal — we don’t know if she was watchlisted at the same time or separately, by whom, or why) on one or more watchlists remain secret, and were never disclosed to Dr. Ibrahim or her attorneys or reviewed by the judge. Because the government admitted that the no-fly listing was unwarranted and a mistake, the court never reached the question of what to do if the government claims that a listing was justified.
The “no-fly” list and the government’s other “watchlists” aren’t actually separate lists. Both are contained in the consolidated Terrorist Screening Database (TSDB). The only difference between a “watchlist” entry and “no-fly” entry is a flag associated with an entry on the consolidated list.
According to a post-trial government filing, “Kelley designated Dr. Ibrahim as ‘handling code 3.’… The majority of individuals in the TSDB are assigned the lowest handling codes – codes 3 and 4.” That same “status” — not flagged as a “no-fly” listing, and with one of the lowest “handling codes” — was sufficient to cause the DHS to send a message to the airline on which Ms. Mustafa Kamal had reservations. That message induced the airline (as it was intended to do) to refuse to fulfill its duty as a common carrier or allow Ms. Mustafa Kamal to exercise her right, as a U.S. citizen, to travel to the US.
A watchlist sounds like a list of people who are subject to passive monitoring. In practice, “watching” or surveillance isn’t aimless. It’s for the purpose of making decisions affecting individuals. In the case of Ms. Mustafa Kamal, some other “watchlist” status had the same negative consequence, denial of boarding by an airline, as “no-fly” status. Dr. Ibrahim’s watchlist status (and perhaps the fact that she had once been on the no-fly list) led to her being unable to obtain a US visa, even lafter she was removed from the no-fly list.
In the future, “watchlist” needs to be understood as a euphemism for a de facto blacklisto that allows a level of deniability: “You’re not on the no-fly list. We just advised the airline not to let you fly.”
There’s no hard line between passive surveillance and active interference with individual’s activities. This lesson is well known to the FBI: Sending the FBI to question your employer can get you fired, even if the FBI is in theory merely collecting information and doesn’t order or explicitly recommend that you be fired.
Surveillance is itself stigmatizing, and stigma has consequences. During the Ibrahim trial, the government argued, verbally and in written pleadings, that it had not stigmatized Dr. Ibrahim because it “never” disclosed Dr. Ibrahim’s status on its lists to “anyone”. But in fact, the government disclosed Dr. Ibrahim’s status on the list, and later that of her daughter, to the airlines. These are precisely the entities to which it would be most damaging to have this stigma (suspicion of posing a threat to aviation) disclosed.
(5) The US government is willing to lie to the courts to try to hide its mistakes and misconduct.
Before, during, and after the trial, officials including Attorney General Eric Holder and Director of National Intelligence James Clapper and lawyers for the government defendants claimed that to disclose anyone’s status on any watchlist, or the basis (if any) for assigning that status, would “cause significant harm to national security.”
This continued even after Judge Alsup and Dr. Ibrahim’s attorneys knew how Dr. Ibrahim had been placed on the no-fly list and that the government did not consider her to pose any threat to aviation.
Dr. Ibrahim’s lawyers sought to depose Attorney General Holder and DNI Clapper regarding their sworn declarations supporting the assertion of “state secrets” privilege by Holder and the other defendants. On motion of Holder and the defendants, Judge Alsup quashed the subpoenas for those depositions.
On its face, the government’s assertion amounts to a claim that to disclose to the public that Dr. Ibrahim was put on the no-fly list because an FBI agent failed to check a box on a form would harm national security.
Does the government really expect us to believe that would-be terrorists are deterred by their belief that the FBI is infallible, so that disclosing that the FBI once made a mistake would unleash the forces of terror?
We don’t think so. The government lied to cover up its mistakes and to protect itself against deserved criticism, not to protect national security.
Remember that the next time the government claims that something must be kept secret “because terrorism”.
For more than a year, an anonymous blog called Taking Sense Away has been reporting on what it’s like to work at a TSA checkpoint as a “Transportation Screening Officer”.
Now that he is no longer a TSA employee, the author of the blog has revealed himself in an article in Politico (“Dear America, I Saw You Naked”) as Jason E. Harrington, a graduate student (currently working on a novel based on his time at the TSA) who worked for the TSA at O’Hare Airport in Chicago from 2007 until May 2013.
Thank you, Mr. Harrington. The TSA needs more whistleblowers, leakers, and honest story-tellers.
Sadly, there’s nothing really surprising in the Politico article, and we’ve been following the blog since its launch. We already knew this stuff was happening behind the scenes, such as TSA staff who know that what they are doing is security theater, and enjoy that theater by necking in the back room that’s deliberately designed to enable them to watch the naked images of passengers in private, assured that nobody can see them or catch them on camera while they are fooling around or laughing as passengers’ body-scans.
What we have now that’s different is someone with years of inside experience who who is prepared to put his name and stake his reputation on this testimony (and to provide a publication outlet for other TSA whistleblowers). Read it all and weep, and keep following for more revelations.