Documents newly released to us by the TSA strongly suggest that the TSA has been lying about whether people are “allowed” by the TSA to fly without showing ID, and that decisions about whether to allow travelers to fly without ID are being made arbitrarily, on the basis of irrelevant and unreliable commercial data and/or at the “discretion” of individual field-level TSA staff. The TSA documents also show that, at least for the limited sample of data initially released, the “false-positive” rate of watch-list matches is 100%.
The TSA has for many years been contradicting itself, both in word and in deed, as to whether travelers are required show government-issued (or any other) ID credentials in order to fly, or whether it is possible to fly without ID.
TSA signs at airports say that passengers are “required” to show ID. But the TSA has repeatedly told courts at all levels — from in camera (secret) submissions to the 9th Circuit Court of Appeals in Gilmore v. Gonzales in 2006 to public testimony of the TSA’s witness in the (unsuccessful) state court frame-up of Phil Mocek in Albuquerque in 2011 — that these and other official TSA notices to passengers are false, that ID is not required to fly, and that the TSA does have (secret) “procedures” that allow people to fly without having or showing ID.
The TSA’s actions are equally bipolar. People who say they have lost their ID cards or had them stolen are “allowed” to fly every day. But people who the TSA deems (for secret or not-so-secret reasons, or completely arbitrarily) to be”suspicious” or “uncooperative” are routinely subjected to retaliation and summary sanctions including denial of their right to travel. Mr. Mocek, for example, was both prevented from boarding the flight for which he had a valid ticket, and falsely arrested by local police at the behest of TSA staff, when he tried to fly without ID and to document the process that the TSA claimed would have allowed him to do so.
What’s the real story? From our close reading of the available evidence, it appears that:
- There are no publicly-disclosed “rules” (and probably not even any unambiguous secret rules) defining what is or is not permitted or required of travelers at TSA checkpoints, or what conditions the TSA imposes on the exercise of the right to travel by air.
- The TSA claims to have the legal authority, and in practice exercises actual power, to determine who to allow to fly, and who not to allow to fly, in an entirely secret, standardless, and arbitrary manner, at its sole discretion, which discretion is often delegated to front-line TSA staff.
How does this work in practice? We are just beginning to find out.