Jan 21 2014

Federal Courts of Appeal review TSA checkpoint practices

Recent events in three legal cases — one decision, one oral argument, and one interim order, each in different federal circuits — demonstrate the Alice-In-Wonderland character of the “reviews” of TSA practices conducted by the Courts of Appeals.

In George v. Rehiel et al., decided December 24, 2013, the 3rd Circuit overruled a District Court decision and dismissed a complaint against TSA, FBI, Joint Terrorism Task Force, and Philadelphia Police personnel brought by the ACLU of Pennsylvania on behalf of Nicholas George.

According to the statement of undisputed facts in the 3rd Circuit’s decision:

Nicholas George, a 21-year old citizen of the United States, was scheduled to fly from Philadelphia, Pennsylvania, to California to begin his senior year at Pomona College. George claims that after he arrived at the Philadelphia International Airport, he was detained, interrogated, handcuffed, and then jailed, in violation of his Fourth and First Amendment rights, because he was carrying a deck of Arabic-English flashcards and a book critical of American interventionism…. [H]e was locked in a cell for more than 4 hours. He remained in handcuffs for the first two hours of that detention.

The decision by the 3rd Circuit panel includes several disturbing findings, one of which creates an explicitly acknowledged conflict with another Circuit.

The 3rd Circuit noted that, “We caution, however, that the detention at the hands of these TSA Officials is at the outer boundary of the Fourth Amendment.” But the Court nonetheless found that, “Nevertheless, we cannot hold that continuing to detain George for approximately 30 minutes under the circumstances here was so unreasonable that it violated the limitations that must surround administrative searches,” even where the search was triggered solely by the content of the flashcards and book carried by Mr. George — indisputably lawful matters protected by the First Amendment.

The 3rd Circuit only addressed the half hour while Mr. George was in the custody of the TSA before the Philadelphia Police put him in handcuffs and took him to a cell at the airport police station. The 3rd Circuit found that the TSA personnel had no responsibility for what happened to Mr. George after they turned him over to the police, and that the FBI agents and members of the Joint Terrorism Task Force who interrogated him in the cell had nothing to do with his continued detention there.

In so holding, the 3rd Circuit panel noted its disagreement with the holding of the 4th Circuit in Tobey v. Jones, et al., another case involving  a wrongful arrest by local police, at the behest of the TSA, as a result of expressive content protected by the First Amendment:

We disagree with the Tobey majority’s conclusion that “[i]t is an undoubtedly natural consequence of reporting a person to the police that the person will be arrested.” That conclusion does not appear to have been based on anything in the record. Rather, it seems to arise from the majority’s personal assumptions and inferences. However, absent something on the record to the contrary, it seems just as likely that police officers who are summoned by TSA Officials would use their own independent discretion to determine whether there are sufficient grounds to take someone into custody.

The reality is that when the TSAs calls for law enforcement “assistance” (under Memoranda of Understanding between airlines, airports, and police that the TSA requires to be in place before it will approve security plans), local police arrest first and ask questions or make up excuses later. They don’t consider backing up the TSA or its contractors to be a matter of “discretion”. And police can’t exercise “independent discretion” about whether TSA “procedures” have been violated, since local police aren’t cleared to see the secret TSA documents that say what is forbidden and what is required.

The 1st Circuit heard argument on January 7, 2014, in Ruskai v. Pistole, a petition for review of the TSA’s policy and practice of subjecting travelers with metal implants (a medical disability) to “enhanced pat-downs” including groping of their breasts and genitals, even if the imaging that precedes the groping shows that the only “anomalies” are in other parts of their bodies.

Ms. Ruskai argues that these searches violate the Fourth Amendment and the provisions of the Rehabilitation Act related to persons with disabilities. (The TSA admits that, “Neither the Supreme Court nor this Court has decided whether § 504 prohibits ‘conduct that has an unjustifiable disparate impact’ on qualified individuals with disabilities.”)

Congress has expressly ordered the appointment of a DHS Officer for Civil Rights and Civil Liberties (CRCL), who “shall …  investigate complaints and information indicating possible abuses of civil rights or civil liberties.”  But Ms. Ruskai argues that the CRCL did nothing to investigate her complaints, and merely passed them on to the TSA, which in turn merely sent her form letters defending standard TSA practices.  (Our own complaints were “answered” by CRCL only after more than five years, and then only in part.)

Disturbingly, the TSA argues that the statutory mandate of the CRCL to “investigate” complaints of Constitutional and other civil rights violations by the DHS components is satisfied by referring a complaint to the agency, such as the TSA, which is the subject of the complaint. The TSA claims that no further action by the CRCL, and no factual or legal “investigation” by any DHS component, is required.

Over in the 11th Circuit, briefing is complete in Corbett v. DHS, one of several challenges to the TSA’s use of virtual strip-search machines. Oral argument — unusual in a case brought pro se by a non-lawyer — is scheduled for June 4, 2014.  In the course of the briefing, the court clerk’s office posted a brief in the public docket that had been filed by Mr. Corbett  “under seal” and accompanied with a redacted public version.

Mr. Corbett wasn’t the one who wanted the information in his brief kept secret.  But he had been given access, for the limited purpose of preparing his case against the DHS, to some information the TSA designated as “Sensitive Security Information” (SSI).  And he complied with the TSA and court conditions of access to that information: He filed any legal pleadings referring to alleged SSI under seal.

The court clerk’s office was supposed to keep the sealed documents accessible only to the court and the parties to the case, but it made one of them available online through the fee-based but otherwise public PACER system. It was retrieved, published on other websites, and commented on by many. That included, not surprisingly, Mr. Corbett himself on his own blog.

After the court clerks’s office had disseminated Mr. Corbett’s sealed brief around the world, attorneys for the Department of Justice, representing the DHS as the defendant in the lawsuit, contacted Mr. Corbett and demanded that he take down his blog post and stop talking about the sealed brief. And the government sought to replace Mr. Corbett’s breif with a version it had redacted for him.

Three months later, the court has now ordered Mr. Corbett “to refrain from disclosing, publishing, or disseminating the contents of the FOUO [For Offical Use Only] documents to the public, regardless of whether the information has already been made available to the public through the disclosure of Petitioner’s initial brief…. Pending further order of the Court, Petitioner is directed to remove from his blog site any FOUO information or information derived form FOUO documents provided to him in this litigation, including the quotation to the second sentence in the second full paragraph on page 27 of his initial brief.”

Anyone else in the world can talk about or publish Mr. Corbett’s brief — the written arguments he made to the court — but he can’t.  So we’ll say it for him: In the internal TSA documents provided to Mr. Corbett, the TSA admitted that:

As of mid-2011, terrorist threat groups present in the Homeland are not known to be actively plotting against civil aviation targets or airports; instead, their focus is on fundraising, recruiting, and propagandizing.

This is what the TSA requested, and the 11th Circuit has now agreed, to stop Mr. Corbett from further publicizing: The TSA itself has concluded that civil aviation and airports are not terrorist targets.