Papers, Please!

While we’re picking on what the TSA posts in its official blog, let’s take a look at what the TSA said in another blog post earlier this week entitled, “Can you fly without ID?”

It’s an important question, but the TSA only hints at the answer.

One might expect that the answer to the question, “Can you fly without ID?”, would start with the ID rules. But no, there are no rules about this or anything else the TSA does.  The TSA has “Standard Operating Procedures”, but (a) they aren’t rules, and the TSA can’t be required to follow them, and (b) they are secret. Gotta keep the terrorists (and the innocent travelers) guessing, apparently.

According to the TSA’s latest blog post:

If we can’t confirm your identity with the information you provide or you’re not willing to provide us with the information to help us make a determination, you may not be able to fly.

What does this mean?

Obviously, the only reason you might “not be able to travel” would be that the TSA would prevent you from doing so, or direct someone else — most likely the airline or local law enforcement officers — to do so. So the TSA statement amounts to an assertion of authority to issue no-fly orders.

But the TSA doesn’t say that you won’t be able to travel, only that you “may” not be able to do so. So the TSA’s assertion is of discretionary no-fly authority.

There is no requirement in any TSA regulation or law for would-be travelers to identify themselves or provide any information to the TSA. Nor is there any definition of what it might mean for the TSA to “confirm your identity”, or what information might be required for that purpose. So the TSA’s assertion is of administrative no-fly authority not derived from any public source and not bounded by any publicly-disclosed standards.

To sum it up, even while saying that yes, you might sometimes be allowed to fly without ID, the TSA is claiming the authority, in its standardless administrative discretion, to prevent you from flying if you don’t provide whatever information it asks for, or if it claims to have been unsuccessful (for whatever reason) in accomplishing whatever it thinks constitutes “confirming” your identity.

So much for the “right” to fly without ID, and for TSA compliance with its explicit statutory duty to treat air travel as a public right.

Airlines should have been defending their customers against government demands for information. Instead, they have chosen to collaborate with governments not just in surveillance and violation of the rights of their customers, but in the cover-up of those practices and the attempt to keep travelers from realizing their extent.

We got a letter from Air Canada yesterday informing us that, “Your personal information was not disclosed to a government agency with respect to the flights mentioned in your Request…”

If we didn’t know better, this would be reassuring. But it’s not true.

As it happens, we had gotten another letter earlier this week from the Canadian Border Services Administration (CBSA), containing portions of its records of Passenger Name Record (PNR) and Advance Passenger Information (API) data about our flights on Air Canada, which CBSA had obtained from computerized reservation systems and Air Canada’s Departure Control System (DCS):

[Excerpt from Air Canada API and PNR data from the CBSA "Air Targeting" system]

The information in the CBSA Air Targeting files includes both PNR and API data for Air Canada flights, despite the “claim”: that, “Air Canada is not in a position to provide you with APIs records and logs for the flights listed in your Request since no such APIs records were created.”

And earlier this year, in the last batch of information disclosed by US Customs and Border Protection in response to our Privacy Act and FOIA lawsuit for records from the CBP Automated Targeting System, we received copies of two PNRs that CBP had obtained from different reservation systems for those same Air Canada flights:

[Excerpt from Air Canada PNR from the USCBP Automated Targeting System]

[Excerpt from Air Canada & Swiss International PNR from the USCBP Automated Targeting System]

(more…)

“Don’t trust, and don’t verify“, would seem to be the motto of authorities in Arizona when it comes to demands for documents and “proof” of citizenship and status — if your skin is brown.

Arizona’s SB1070 requires police, in certain circumstances, to “attempt” to determine your immigration status. But that obligation on the police does not create any obligation on individuals. In its initial decision on SB1070, the Supreme Court made clear that this provision of the law cannot Constitutionally be used as the basis to detain people without some other lawful basis.

Actions on the ground in Arizona, however, suggest that in practice the burden of proof is being placed on (brown-skinned) Arizonans to prove that they are “not illegal”, on pain of prolonged detention on the basis of mere suspicion (and regardless of the weight of the actual evidence).

The Phoenix New Times has been following the case of Briseira Torres.  She was born (at her mother’s home, which the Department of State seems to find inherently suspicious) in Arizona, and her birth was registered (albeit late, as is common for home births) with the Arizona Office of Vital Records.

One doesn’t have to be registered with the government to be born, or to be a US citizen. But that didn’t stand in the way of Arizona and US authorities.  When Torres went to the Federal Building to apply for a passport for her daughter, after submitting a copy of her own birth certificate as evidence of her daughter’s US citizenship by birth, the State Department employees at the passport office called in Arizona state law enforcement officers to help interrogate Ms. Torres.

Eventually, on the theory that the original registration of Ms. Torres’ home birth had been falsified, the Feds turned her over to state authorities, who had her indicted (withholding from the grand jury the state’s official record of her valid birth certificate, and falsely claiming to the grand jury that her birth registration had been “cancelled”)  for fraud.  She was jailed for 4 1/2 months, during which time she was separated from her child and lost her home and car because she couldn’t make the payments on them, before she got a lawyer and the state withdrew the charges.

Now, to try to retroactively justify their deprivation of Ms. Torres’ rights, state officials have initiated a newly-created administrative process to revoke the registration of her birth.

In other words, the state of Arizona wants to “un-birth” Ms. Torres — at age 31.

We’re glad Ms. Torres has a lawyer, and we hope she collects substantial damages from both Arizona state and county officials and the State Department “special agent” who initially detained her, called in the state cops, and eventually turned her over to their custody.

This incident began with Ms. Torres being called in to answer questions about her passport application for her daughter. The role of the Passport Office and other State Department employees shows exactly why we are so concerned about the State Department’s proposed new questionnaire for passport applicants.

Government “un-birthing” of citizens isn’t the only strange thing going on in Arizona, unfortunately.

At the Deconcini border crossing between the central business districts of Nogales, Arizona, and Nogales, Sonora, US Customs and Border protection is requiring some “trusted travelers” to submit to interrogation by allegedly lie-detecting robots developed (with DHS grant money, we presume) by the National Center for Border Security and Immigration at the University of Arizona.

If the robot thinks you are lying, “a more through interview would follow”, according to news reports.

But Ms. Torres’ example shows that if a human Fed in Arizona thinks you are lying about your papers, they will detain you and turn you over to the state of Arizona to be locked up without bail for months, without bothering even to look at your actual papers (not that you have to have any “papers” in the first place to be born or have rights).

In that light, we hope courts will look skeptically at the legality of prolonging the detention of a border crosser based on the statement of a semi-anthropomorphic animated robot that, “I think you are lying.”

In the latest episode in the increasingly bizarre but all too real saga of standardless secret administrative no-fly orders from the DHS to airlines, prohibiting the transportation back to their home country of US citizens,  Oklahoma native Saadiq Long is being prevented from returning home to the US to spend the holiday season with his terminally ill mother.

Long is a US citizen and an honorably discharged veteran of the US Air Force, never charged with any crime in the US or any other country, who has been living and working as an English teacher in Qatar for the last several years.  He’s also a convert to Islam, which shouldn’t be relevant but probably is.

When he learned of his mother’s illness back home in Oklahoma, he made reservations and bought tickets from KLM for flights from Qatar to the US for what might be a last visit with his mother.

Less than 24 hours before his scheduled departure from Qatar in May, KLM told Mr. Long that the airline (and all others serving the US) had been forbidden from allowing him to board any flight to the US.

Mr. Long has been trying ever since to find out why the government of his country has forbidden all airlines from transporting him, or to find a way to get those orders rescinded. But to date, the DHS has maintained its position that it will neither confirm nor deny whether it has issued any no-fly orders with respect to any specific person, much less the basis (if any) for such orders.

KLM explicitly informed Mr. Long that it had received a no-fly order from the DHS. So in theory, KLM would be required by Dutch data protection law to disclose that order to Mr. Long on request. That wouldn’t tell Mr. Long why he had been banned form returning to his country (the DHS probably didn’t share the reasons for its order with the airline), but would prevent the DHS from claiming in court that whether Mr. Long has been prohibited form flying is a state secret.

Given KLM’s poor track record when individuals have requested KLM’s records of its communications with governments, and the Dutch data protection authority’s poor track record of enforcing the law, it’s hard to predict whether KLM would comply with a request from Mr. Long for all orders or communications pertaining to him between KLM and the US government.

Mr. Long is being assisted by the Council on American-Islamic Relations (CAIR), which has led the struggle for judicial review of no-fly orders. CAIR staff attorney Gadeir Abbas, the leading advocate for US citizens exiled by no-fly orders, told Glenn Greenwald that, “Every few weeks I hear of another Muslim citizen who cannot return to the country of which he is a citizen.”

[Update: Mr. Long was again denied boarding by KLM in Qatar on November 8, 2012.]

U.K. authorities have apparently detained an Italian citizen disembarking from a trans-Atlantic cruise ship at Southampton on the basis of his inclusion on the U.S. “no-fly” list.

It’s the latest in a steady series of expansions of the extra-territorial reach of U.S. travel surveillance and control, and should raise a red flag as to the dangers of the proposed intra-EU system of PNR-based travel surveillance and control.

According to news reports and a press release from his U.S. lawyer with the Council on American-Islamic relations, Michael Migliore is a 23-year-old dual citizen of the USA and Italy. He’s been trying to return to Italy, to live with his mother there. But when he tried to board a flight in Portland, Oregon, he was refused passage and eventually told he was on the U.S. “no-fly” list.

Undaunted, he took a train to New York (as of now, the DHS only applies “no-ride” controls to international Amtrak trains to and from Canada, not domestic trains) and then a cruise ship to England.

The U.S. APIS rules require cruise lines, like airlines, to get permission from CBP before allowing each passenger to board. But for some reason, they let Migliore board a ship even though they wouldn’t let him on a plane. It’s hard to see a rational reason why, if they really thought he was a terrosirt threat, unless they had an unusually precise “pre-crime” vision of what they thought he intended to do. A cruise ship crossing the Atlantic is at sea for a week, and carries thousands of passengers. Unlike airline passengers, who are reported to the FBI for detention and questioning and their flight escorted by fighter jets if they spend an unusually long time in the toilet (trying to join the Mile High Club?), cruise passengers aren’t under constant scrutiny.  It would be much easier and do much more damage for a terrorist to sabotage a cruise ship than an airliner.

But whatever their reasons, U.S. authorities allowed Mr. Migliore to board the ship departing from the U.S., but apparently alerted U.K. authorities who detained him on arrival. (His U.S. lawyer presumes he’s been detained since he hasn’t been heard from since he disembarked, but nobody has yet gotten  any formal confirmation of who is holding him, where, or why.)

Presumably, mr. Migliore would have sought to enter the U.K. as an Italian citizen. We invite our European readers to speculate in the comments as to what EU laws and rights may have been violated by the U.K. in detaining an  EU citizen on the basis of secret derogatory information from the U.S., what due process Mr. Migliore is entitled to, and what basis the U.K. will need to continue to detain him or to prevent him from returning to Italy, the country of his citizenship.