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The Identity Project

Monthly Archives: June 2014

Jun 26 2014

Court rules “no-fly” review procedures lack due process

In a significant reaffirmation of the decision earlier this year in Ibrahim v. DHS, another federal District Court has now found that the US government’s administrative procedures for reviewing and appealing “no-fly” decisions violate both Constitutional standards of due process and the requirements of the Administrative Procedure Act.

The ruling this week by Judge Anna J. Brown of the US District Court for the District of Oregon, in Portland, comes in the case of Latif, et al. v. Holder, et al. This lawsuit was brought in 2010 by the ACLU on behalf of ten US citizens and permanent residents (green card holders). Their stories, as summarized in Judge Brown’s latest ruling, vary, but all of them have been prevented from boarding international flights to or from the US, and/or overflying US airspace.

Some of the plaintiffs in Latif v. Holder have been trapped in the US, separated from family and/or employment opportunities abroad, while others are trapped overseas, unable to return home. At least one of the plaintiffs who booked passage on a passenger-carrying ocean freighter to return to Europe from the USA was denied boarding by the ship’s captain as a result of a “recommendation” from the US Customs and Border Protection division of DHS.

In 2012, the 9th Circuit Court of Appeals overturned the government’s effort to prevent the District Court from hearing this case. Last year, finally beginning to consider the merits of the complaint, Judge Brown ruled that international travel by air is a right that can only be restricted in accordance with due process of law.

Judge Brown’s latest ruling addresses whether the government’s current procedures, particularly the DHS “Traveler Redress Inquiry Program” (TRIP), provide such due process. Judge Brown has now decided that they do not, and must be changed to provide the subjects of no-fly orders with:

  1. Notice (at least after they have been denied boarding on an international flight and sought redress) of whether they are on the US government’s no-fly list.
  2. At least a summary of the nature of the “suspicion” and the evidentiary basis for the administrative decision to place them on the no-fly list.
  3. An opportunity for some sort of in-person hearing to present evidence to rebut the allegations and evidence against them.

Echoing Judge Alsup’s finding in Ibrahim v. DHS, Judge Brown found that the opportunity to submit exculpatory or rebuttal evidence through the TRIP program is meaningless without notice of what allegations have been made, on what evidentiary basis, and thus of what needs to be rebutted.

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Jun 01 2014

Can the TSA retroactively declare public information “secret”?

At the request of the government, the Supreme Court has agreed to review the decision of the Court of Appeals for the Federal Circuit in favor of Robert MacLean, a TSA “air marshal” who was fired for telling a journalist, members of Congress, and the DHS Office of the Inspector General about an unclassified text message that the TSA,  three years later, would designate as “Sensitive Security Information” (SSI).

Mr. MacLean challenged his firing as being in violation of the Whistleblower Protection Act, which prohibits retaliation against Federal government employees for certain types of disclosures of information.  But the law has an exception for disclosures “specifically prohibited by law.”

A 3-judge panel of the Court of Appeals found that the ex post facto administrative designation of the text message by the TSA as SSI did not make its disclosure “specifically prohibited by law.”  The Court of Appeals unanimously denied the government’s petition for rehearing en banc.  Now the Supreme Court has decided to hear the case, DHS v. MacLean, during its 2014-2015 term.

The issue presented to the Supreme Court is the meaning of the phrase, “specifically prohibited by law,” in the Whistleblower Protection Act.  But the case is also necessarily about the extent of the TSA’s authority to create “secrets” retroactively and by administrative fiat.

Federal laws and regulations shouldn’t be interpreted by the courts as though they were written in Orwell’s Newspeak.  Information known to the public is not “secret”. The TSA cannot make it “secret” by retroactive administrative action, and should not be allowed to punish those who talk about or disseminate it.

Jun 01 2014

The rights of migrants, refugees, and asylum seekers

At the invitation of the U.N. Office of the High Commissioner for Human Rights (OHCHR), we’ve submitted the following recommendations concerning the right to freedom of movement as it relates to migrants, refugees, and asylum seekers at ports, airports, borders, and checkpoints:

As an NGO primarily concerned with the right to freedom of movement, the Identity Project (PapersPlease.org) welcomes the invitation and opportunity to provide this information to the Office of the High Commissioner for Human Rights, for your use in preparing your report to the General Assembly concerning the human rights of migrants while in transit, including in ports and airports and at borders and checkpoints.

We are pleased that Resolution A/RES/68/179, as adopted by the General Assembly on 18 December 2013,  “Reaffirm[s] that everyone has the right to freedom of movement and residence within the borders of each State and the right to leave any country, including his or her own, and to return to his or her country,” in accordance with Article 12 of the International Covenant on Civil and Political Rights (ICCPR).

Unfortunately, that right, and in particular the right to leave any country, is routinely and systematically violated. These violations have especially grave consequences for asylum seekers who are prevented from fleeing countries where they are experiencing, are at risk of, and/or have a well-founded fear of persecution.

Airlines routinely prevent refugees and asylum seekers from boarding flights on which they seek to depart from countries where they are being persecuted.  In many of these cases, these refugees and asylum seekers would be eligible for admission and asylum on arrival in other countries, if they were allowed to travel to places of refuge.

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