Feb 24 2015

Must we choose between the right to travel and the right to remain silent?

When US citizen Jonathan Corbett checked in at Heathrow Airport in London for an American Airlines flight to New York last December, he was questioned by an airline employee or contractor (it’s often impossible to tell which are which) about his travel outside the US:

When questions changed from, “Where are you flying?” to “Was your trip for personal or business purposes,” and “Where were you since you left America,” I asked if the questions were necessary, and was told yes.

Mr. Corbett was eventually allowed to board his flight without answering these questions. But he followed up first with the airline, which referred him to the TSA, and then with the TSA itself.

Both AA and the TSA said that the questioning is part of a TSA-mandated “security program”. While AA and the TSA both claimed that most details of this program are secret, the TSA “Office of Global Strategies Communications Desk” (OGSCommunications@tsa.dhs.gov) told Mr. Corbett that answering the questions is a condition of boarding a flight to the US:

As part of its Transportation Security Administration (TSA)-approved security program, American Airlines is required to conduct a security interview of passengers prior to departure to the United States… If a passenger declines the security inteview, American Airlines will deny the passenger boarding. The contents of the security program and the security interview are considered Sensitive Security Information (SSI) … and its contents are not for public disclosure. Any security procedure performed by the airline would be because of a requirement in their program.

Yesterday, Mr. Corbett filed suit against the TSA in both the U.S. District Court for the Eastern District of New York (which has jurisdiction over Kennedy Airport in Queens, where his flight arrived in the US) and in the 11th Circuit Court of Appeals (which has jurisdiction over Florida, where Mr. Corbett resides).  Perverse judicial precedents including those in Mr. Corbett’s own previous lawsuits require most lawsuits against TSA practices to be filed simultaneously in both District and Circuit Courts, to avoid a risk of being dismissed on jurisdictional grounds.

Mr. Corbett’s lawsuit directly challenges the requirement for a traveler to answer questions (i.e. to waive his or her Firth Amendment right to remain silent) as a condition of the exercise of the rifght to travel, specifically the right of a US citizen to return to the US.

Mr. Corbett has already been carrying on, pro se, an extensive campaign of litigation against TSA intrusions on travelers’ rights, most recently a pending petition for review by the Supreme Court of the permissible scope and purposes of TSA searches of domestic travelers.

Courts have upheld suspicionless “administrative searches” at airports and elsewhere, and suspicionless questioning at immigration and other checkpoints.  But courts reviewing these practices have always based their decisions on the assumption (whether or not it was true in practice) that individuals were not required to respond to such questioning, and would be allowed to go on their way after at most “brief” detention unless there was probable cuase for their arrest.

DHS customs and immigration inspectors have delayed US citizens who declined, on arrival, to answer questions about their travels, but have eventually allowed them to re-enter the US. Attorney and frequent international traveler Paul Karl Lukacs’ original blog posts about this are no longer online, but there’s another version here and follow-up commentary here by Mr. Lukacs and others .

So far as we know, Mr. Corbett’s challenge to being compelled to respond to “administrative interrogation”, as a condition of exercise of other Constitution rights, is a case of first impression.

6 thoughts on “Must we choose between the right to travel and the right to remain silent?

  1. I’ve gotten to where I don’t answer the questions, just point out that I’m an American citizen with a valid passport and that’s all that is required. Usually they wave me through, though I have been detained. When detained, I ask, “Can you point me to the law or regulation that requires me to answer these questions.” Since there isn’t one (and after escalation through several layers of management), I’m allowed to continue on my way.
    As I understand it, the questions are to determine whether you are behaving as if you have something to hide. When I’ve been detained, it’s always been because the DHS employee felt I wasn’t giving him the respect and authority he’s been trained to expect.

  2. In Texas, it’s actually gotten worse than ‘merely’ choosing between the right to travel and the right to remain silent. Under the leadership of CPA Robert Harris, Border Patrol agents are now routinely assaulting vehicle occupants and detaining them for long periods of time if they exercise their right to remain silent while stopped at internal CBP checkpoints. See:




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