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The Identity Project

Monthly Archives: June 2010

Jun 30 2010

New lawsuit challenges no-fly orders

In a lawsuit filed today by the ACLU in Federal court in Oregon, Latif, et al. v. Holder, et al., ten U.S. citizens who have been refused permission to board flights to, from, or within the US, or have boarded flights to the U.S. only to have them turn back en route, are suing the Attorney General, the Director of the FBI, and the Director of the Terrorist Screening Center for denying their rights by ordering airlines not to transport them.

At least one of the plaintiffs even flew to Mexico, to avoid overflying the US, with the hope of returning to the US by land.  Instead, he was arrested by Mexican police (presumably at the behest of the U.S. government, and deported not to the country of his citizenship, the USA, but to Colombia, where he has only a temporary visa and can’t remain.  That should have prompted diplomatic protest by the US to Mexico for the improper deportation of a US citizen to a third country.  But presumably Mexico acted at the behest of the US, and there has been no sign of US objection.

So far as we know, this is only the second lawsuit to directly challenge the legality of no-fly orders, and the first on behalf of US citizens.  The previous case was brought by Rahinah Ibrahim, a Malaysian graduate student at Stanford University, after she was detained by San Francisco Airport police and prevented from flying home to her country in 2005. While her complaint remains pending against the individual police in U.S. District court for the Northern District of California, the cases against all of the Federal agencies and officials have been dismissed.

The latest case will test whether the Obama Administration still agrees with former Secretary of Homeland Security Chertoff that no-fly decisions should not be subject to judicial review.  [Update: From the latest statement by the Director of the National Counterterrorism Center, it appears that they may.] And it will be closely watched in Europe as well, where the Obama Administration has assured the European Union that adequate means of redress do exist in U.S. courts for individuals — including some of the plaintiffs in the latest case — denied permission to travel from the EU to the U.S. on the basis of passenger data transmitted to the DHS.

Jun 30 2010

Will Canadian travelers be subject to more US tracking and control?

After a series of investigative reports in the Canwest newspapers in March of this year called attention to the lack of any legal basis under Canadian law for US government access to information about flights to and from Canada that overfly the US (notably including Canada-Cuba flights), the Canadian Conservative minority government has responded by introducing a bill earlier this month that would, if approved by the Canadian Parliament, override Canada’s Personal Information Protection and Electronic Documents Act (PIPEDA) to allow the US or any foreign government to find out who is on flights to and from Canada overflying those countries, even if they don’t land in the US.

Canadian law was amended after September 11, 2001, to override PIPEDA and allow US government access to airline reservation data, but only for flights that actually carry passengers to or from the USA. BIll C-42 would extend that to overflights of any country that wants to vet (or simply log) who’s on flights through its airspace.

The sponsors of the latest proposal, Bill C-42, expect it to be controversial, and it has already been criticized by opposition MPs.  Opposition parties have united to pass other legislation supported by the minority government related to collaboration with US wars (such as a measure supporting political asylum in Canada for people resisting service in the US military in wars in Iraq and Afghanistan that violate Canadian and international law), and some observers predict that could happen with Bill C-42 as well.

We certainly hope that Canadians learn from the mistakes of the USA, stand up for their sovereignty, and say “no” to US surveillance of overflights, just as people in the USA would say “no” if the Cuban government demanded to know who is on the dozens of flights every day that fly over Cuba en route between Miami and South America.

Jun 29 2010

State Dept. brushes off critics, raises passport fees

Yesterday the Department of State published an interim final rule putting its previously proposed increases in passport and visa fees into effect as of July 13, 2010.

The State Department admitted that more than 98% of the comments received from individual members of the public were opposed to the fees, as were comments from the travel industry and from the Identity Project and other consumer and civil liberties organizations.  But the State Department brushed off those objections (failing even to acknowledge our complaint that the rulemaking violated US international treaty obligations on freedom of movement, or our complaint and those of travel companies that it violated the Administrative Procedure Act) and finalized the proposed fee increases unchanged.  No consideration was given to their economic impact on self-employed or freelance business travelers, despite the requirement for such an assessment under the Regulatory Flexibility Act.

Unless the interim final rule is challenged in court (perhaps by travel companies, on APA grounds), fees for new or renewal passports and “passport cards” will all increase for applications received by the Passport Office on or after July 13, 2010.  The most extreme increase will be for adding blank visa pages to a current passport, currently a free service for which a new fee of $82 will be imposed.  If your passport might fill up before it expires, apply for new pages now.

Jun 29 2010

TSA has a new top cop

Following hasty hearings by the Senate Commerce, Science & Transportation and Homeland Security Committees, the Senate gave unamimous consent on Friday, without a recorded vote, to the nomination of John S. Pistole, the pistol-packing deputy director of the FBI and right-hand man to Robert Mueller in the FBI’s often extra-judicial “war” on terror, to be an Assistant Secretary of Homeland Security and the Administrator of the TSA.

The hearings (see the links above for archived webcasts) were a mix of praise for Pistole’s police “toughness” and criticism of the possibility that he might allow TSA employees to form a labor union.  “Should law enforcement officers be unionized?”, several Senators asked, apparently duped by their badges, uniforms, titles, and attitudes of presumed authority into thinking that at Transportation Security “Officers” and contractors are law enforcement officers, when in fact they are civilians without police powers (except for a handful of investigators like the ones the TSA sent to serve subpoenas on journalists who published leaked descriptions of some of their procedures).

Civil liberties were scarcely mentioned during the confirmation hearings and none of our suggested questions were asked. Nor was there any mention of Mr. Pistole’s lack of civilian experience.

The last thing the TSA needs, in our opinion, is more cop-think and an even more paramilitary attitude.  We’re hoping for the best, but we suspect that this appointment will make it even more important for US citizens’ and visitors to exercise our rights rather than relying on the TSA or Congress to recognize on their own initiative.

Jun 22 2010

TSA reaches out to the Identity Project

After years of having our complaints ignored, we were pleased to be invited by the TSA to participate in the ongoing “Multi-Cultural Coalition” organized by the Office of Traveler Specialized Screening and Outreach of the TSA Office of Civil Rights and Liberties, under the direction of the TSA Office of the Special Counselor.

In response to an invitation to submit questions and concerns for the agenda of today’s TSA outreach briefing with this coalition — our first such — we submitted the following questions.  We only got notice of the conference call and submitted our questions at the last minute, and didn’t expect these issues to be addressed on such short notice, but we were pleased to be able to put them on the table for TSA consideration, should the agency chose to respond:

  1. Now that the TSA is carrying out all fly/no-fly decision-making for domestic flights through Secure Flight, what is the procedure for obtaining judicial review of no-fly decisions? Or is it the TSA’s belief that no-fly decisions are not subject to judicial review? (We are particularly concerned, of course, about the situation and the means for judicial review of these decisions against US citizens trapped overseas and unable to return to the USA, or unable to leave the USA, because the DHS will not permit them to fly. The upcoming transition to Secure Flight for international flights means, we presume, that these decisions will shortly be transferred to the TSA. We would like to work this out with the TSA before this transition, so that after the transition travelers denied passage have clear information as to the procedures for judicial review.)
  2. Does the TSA have any plans to promulgate regulations defining what orders travelers are required to comply with from TSA employees or contractors, and/or what questions travelers are required to answer, as a condition of being given TSA permission to proceed through checkpoints or board flights? (The Identity Project has received no response, after more than 6 months, to our FOIA requests for the TSA’s standard operating procedures, and of course those procedures are not binding regulations.)
  3. In particular, does the TSA assert the authority to deny passage to travelers who remain silent in response to TSA or TSA-contractor interrogatories? What language would the TSA prefer travelers use (or would you prefer that they simply remain mute?) in order to most clearly and concisely invoke their right to remain silent in response to interrogatories by TSA employees or contractors?
  4. There have recently been problems with TSA employees and contractors calling local law enforcement officers and making complaints against travelers for exercising their rights to photograph and record their own interactions with TSA employees and contractors, and/or for exercising their right to remain silent in response to TSA or contractor interrogatories. Has the TSA conducted any training or issued any guidance to screeners regarding travelers’ rights to remain silent and/or to record and photograph their interactions with TSA employees and contractors (just as the TSA, airport operators, and/or law enforcement agencies and officers record and/or photograph those interactions)? If so, will the TSA make that guidance public, so that travelers who wish to exercise these rights would be able to carry copies of this TSA guidance to show to TSA employees, contractors, and/or local law enforcement officers?
  5. Has the TSA and/or DHS designated a point of contact and procedures for complaints of violations of human rights treaties, including the International Covenant on Civil and Political Rights, in accordance with Executive Order 13107 on implementation of human rights treaties? If not, when does the TSA and/or DHS expect to do so? Will pending complaints need to be re-submitted once this designation is made? (The complaints of the Identity Project that TSA regulations and procedures violate the ICCPR have been pending without response since 2007 in the case of Secure Fight, and since 2009 in the case of the TSA’s practices of secondary screening on the basis of nationality, in addition to our similar unanswered complaints against other DHS components on closely-related issues.)
  6. The TSA changed its office locations without promulgating new Privacy Act SORN’s or FOIA notices, so that none of the addresses of record in the most recent Federal Register notices or the CFR are valid. As a consequence, none of the TSA’s current SORN’s or FOIA notices are valid, and the knowing operation of each TSA system of records, without a valid SORN with a valid current address having been published in the Federal Register, is a criminal violation of the Privacy Act. What action, if any, is the TSA taking to promulgate valid SORN’s and a valid FOIA notice, to discipline those responsible for the current violations of FOIA and the Privacy Act, and/or to alert those who have sent FOIA or Privacy Act requests into the black hole of the current addresses of record that their requests have not been received, and will need to be re-submitted? What is the proper point of contact for complaints of these violations?
  7. In general, what is the proper point of contact in the TSA and/or DHS for complaints of criminal violations of the Privacy Act, e.g. knowing operation of systems of records by TSA without having promulgated a valid SORN? (The Identity Project has never received any response to any of our complaints, filed in TSA and other DHS component regulatory dockets, of criminal violations of the Privacy Act by TSA or other DHS components.)
  8. 42 USC 2000aa prohibits search or seizure of media, journalism, or other public communications work product materials in the absence of specified conditions (probable cause, etc.). We have received several reports of, and have ourselves experienced, search and seizure of such materials by TSA and its contractors. Has the TSA given any training or produced any guidance to TSA employees and contractors regarding 42 USC 2000aa? If so, will that guidance be made public, so that it can be carried and shown at checkpoints by journalists and others carrying work product materials protected from search and seizure? What procedure would the TSA recommend to people carrying such materials, as a way to alert TSA employees and contractors that certain material is exempt from search or seizure under this statute, and to invoke its protections?

In the course of today’s conference call, the TSA asked for suggestions to improve the signs at TSA checkpoints where virtual strip-search machines (Advanced Imaging Technology (AIT), previously “Whole-Body Imaging” (WBI) in the latest TSA-speak) are being used.  We suggested that the signs should include whole-body images at the same size, scale, and resolution as the displays used by the operators of the machines, when the display is zoomed in on a portion of the body to its maximum magnification.  “That’s new information to me” that the current signs don’t do that, said TSA Special Counselor Kimberly Walton. “We’ll have to look into that. I will take that under advisement.”

Jun 18 2010

More reports of US violations of citizens’ right of return

“No one shall be arbitrarily deprived of the right to enter his own country.” (International Covenant on Civil and Political Rights, Article 12)

This week the Council on American-Islamic Relations held a news conference in Washington (statements, testimony, and links to adiditonal info) featuring first-hand accounts of US citizens who have been trapped overseas, unable to exercise their right to return to the USA, because the US refuses to give airlines “permission” to transport them to the USA.

We’ve reported previously on some of the same and similar incidents.  The denial of transport, in the absence of judicial orders such as a no-fly injunction, violates airlines’ contractual and regulatory obligations as common carriers, and the extra-judicial government denial of transport and entry to the country fails to satisfy the substantive and procedural standards under the ICCPR for measures that implicate freedom of movement under Article 12, and violate US international obligations as a party to that treaty.

The US signed and ratified the ICCPR with the reservation that in the USA it would not be “self-efeectuating”, and it is not clear to what degree it has been effectuated by other US legislation. Since no-fly orders are given to airlines by the government, and the orders themselves are kept secret from the (would-be) traveler, it’s difficult for travelers to establish standing to challenge them against the government in US courts. Former Secretary of Homeland Security Chertoff’s publicly declared goal was never to allow judicial review of no-fly orders, and the Obama Administration has announced no change in that policy.

But US citizens who are trapped abroad, unable to return to the USA because airlines won’t transport them (presumably because the US government has told them not to, or hasn’t given them affirmative clearance to do so), aren’t limited to recourse through US courts.  By depriving them of their right of return, while they are outside the USA, the US has given them the opportunity to shop the world for the jurisdiction form which to try to return, and to sue the airline (and, perhaps, the US government) for extra-judicial refusal of, and interference with, common-carrier transportation, and violation of Article 12 of the ICCPR. Those lawsuits won’t be heard in the USA, but in jurisdictions that ratified the ICCPR without reservations, and where the USA may not be able to invoke its “state secrets” doctrines to give impunity to airlines that chose to obey, rather than to challenge, illegal orders form the US government.

Jun 08 2010

“Freedom Flyer” trial in Albuquerque postponed

The trial of “Freedom Flyer” Phil Mocek, previously scheduled to begin June 14th in Albuquerque, NM,has been postponed due to the recusal of the judge to which the case was assigned, who apparently had a potential conflict of interest with one of the potential witnesses.

Mr. Mocek was arrested at a TSA checkpoint at the airport in Albuquerque, NM. The charges against him remain pending, but no new trial date has yet been set.  We are continuing to follow the case, and will post an update in this blog and in our FAQ as soon as we have more information.

Jun 08 2010

Does the US recognize its citizens’ right to cross its borders?

US citizens generally assume that, whatever mistreatment is meted out to foreigners by US border guards and the DHS, we are entitled to enter and leave our own country without asking for, or receiving, permission from”our” government.

That should be a safe assumption, under both the First Amendment to the US Constitution (which guarantees our right “peaceably … to assemble”) and Article 12 of the International Covenant on Civil and Political Rights, which guarantees 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,” and pursuant to which strict standards have been adopted for what is “arbitrary.” All federal agencies have been directed by Executive Order 13107 to “maintain a current awareness of United States international human rights obligations that are relevant to their functions and … perform such functions so as to respect and implement those obligations fully.”

As the brave (some would say crazy) few people like Paul Karl Lukacs who actually try to exercise their rights have shown, it remains possible for US citizens to exercise their right to remain silent at the borders of our own country, although many US citizens have been subjected to interrogation, search, harassment, and sometimes detention when they try to return to the USA.

But can we be entirely prevented from coming or going?  More and more, the frightening answer seems to be yes, in practice if not in law.

We first heard about a native-born US citizen being denied the ability to return to the country from overseas because the government wouldn’t allow any airline to transport them as what seemed to be an isolated incident in 2006. They chose not to sue, and after four months the ACLU negotiated “permission” for them to come home to California.

Now the ACLU reportedly has at least seven clients among US citizens abroad who have been unable to come home because the US government won’t let them board common carriers bound for the USA.  One billionaire friend of Bill Clinton managed to get an apology for having been put on the no-fly list, but the others have no idea when or if they’ll be allowed to come home, whether it’s time to apply for refugee status or political asylum somewhere abroad — or whether, if they do make it home, they’ll ever again be given permission to leave the country.

[UPDATE: More on these and and even more outrageous similar incidents reported  by the Council on American Islamic Relations.]

On the ground, the DHS is erecting steel barriers and gates down the middle of streets in the border town of Derby Line, Vermont, and arresting US citizens for walking across the street to and from Canada at intersections without checkpoints — even if they report themselves at the checkpoint a block further along their walking route.

All of these incidents involve people who have, and are wiling to show, US passports.  Things get truly surreal for US citizens without papers.

We’ve heard from several US citizens who left the country without passports, can’t get new passports issued abroad for various reasons, but aren’t being allowed to come back to the USA without  a passport. Under State Department regulations of questionable validity, a citizen can be denied issuance of a passport for various reasons, such as debts for court judgments, that don’t constitute grounds for deprivation of the right to enter or leave the country. And some of them may be difficult or impossible to resolve from outside the country.  Catch 22.

Finally, there are those who would probably qualify for passports, but who are unwilling to apply for them for religious or other reasons.  We’ve been working with a group of missionaries who describe themselves as Amish Mennonites (there are many varieties of Amish and Mennonite belief).  Although they were born in the USA, they can’t, consistent with what seem to be their sincere religious beliefs, apply for or accept passports that identify them as citizens of the USA rather than as citizens of the Kingdom of God.

For several years, this group has been carrying out mission work in a rural area along the border of the Dominican Republic and Haiti.  Despite seeming to have a clear-cut case under the Religious Freedom Restoration Act, they’ve had increasing difficulty each time they’ve gone back and forth between the island and USA. (Some of their stories of these and other incidents of life without papers are included here.)

One might think that “plain folk” and farmers might have particularly appropriate intermediate technology skills to offer to people in a poor and predominantly agricultural country like Haiti, and that governments would be doing what they could to facilitate the arrival of foreigners trying to bring aid to Haiti in the aftermath of the earthquake.

No such luck.  For more than three months, the members of the Amish-Mennonite mission team have been trying to get permission to board a flight from the USA to the Dominican Republic.

After extensive negotiation, the TSA, CBP, and Department of State have agreed not to prevent their departure from the USA.  American Airlines has sold them a ticket, and agreed to board them if they can show that the D.R. will admit them. The D.R. is willing to admit them, but only if they can provide sufficient evidence that they will be re-admitted to the USA when they return.  There’s the rub: Despite clear treaty law and executive orders that require them to allow all US citizens to return to the country, neither the DHS nor the Department of State will provide any written confirmation that they will admit citizens without passports.  So the missionaries are unable to leave the USA for want of proof that they’ll be allowed back in!

Jun 07 2010

Another Paris-Mexico flight barred from US airspace

Despite being a party to international aviation and human rights treaties guaranteeing free passage through international airspace, the US government claims the right to require prior government permission (granted or withheld in secret, without due process, judicial review, or publicly disclosed standards) not just for travel to or from the USA but for transit through US airspace — even on nonstop flights that aren’t scheduled to land in US territory.

Most such overflights of the US between other countries are to and from Canada, where US control and surveillance of overflights have provoked continuing controversy and opposition.

Of the handful of other airline flight paths between other countries that cross over  US territory, the Paris-Mexico route continues to generate most of the — increasingly bizarre — incidents of US refusal of permission to overfly the US.

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