[Sign carried by Dan Malashock at San Francisco International Airport, January 29, 2017. Photo by Ruth Radetsky.]

Since the start of our work against restrictions on freedom to fly, well before September 11, 2001, we’ve been wondering what further outrage it would take to provoke mass protests at airports, and when that would finally happen.

Now we know. Thousands of protesters (including at least one of President Trump’s fellow billionaires) filled international airports across the country for several days and nights starting last weekend, in reaction against President Trump’s executive order to detain and deport any arriving non-US citizen known to be a citizen (even a dual citizen) of one of seven publicly blacklisted Muslim-majority countries: Iraq, Iran, Libya, Somalia,  Syria, Sudan, and Yemen.

We’ve been talking about related issues for years. Now that they are out in the open, the question is what the outraged public will do, at whom the outrage will be directed, and how airlines — yes, airlines, and not just governments — will respond.

For what it’s worth, it’s unclear whether this executive order would apply to an asylum seeker who renounces their original citizenship in one of the blacklisted countries, even one who makes that renunciation at the check-in counter or in flight, and thereby arrives in the US stateless.  This may seem a far-fetched scenario, but it is common for stateless asylum seekers to use “invalid”, forged, or fraudulent documents to board flights, and then to destroy those documents in flight so as to arrive without papers. Deportation of any stateless person, and most of all a stateless asylum seeker, is especially problematic under international human rights law. But that’s the least of the problems with President Trump’s executive order.

Here are some key things we’ve learned from our work over the last 20 years that people — including those just now beginning to think about the right to fly, especially as it relates to immigrants, refugees, and asylum seekers — need to understand about what is happening, who is responsible, what will happen next, and what can be done:

It’s about government control of movement, not just surveillance of travelers.

“Watchlist” is a euphemism. The list of countries whose citizens are barred from the US is a blacklist, not just a watchlist.

“Extreme vetting” means not just searching and interrogating people before allowing them to enter the US, or surveilling them while they are in the US, but not allowing them to enter the US at all. That’s one of the reasons we have never seen this as an issue that can be completely encompassed in a rubric of “privacy”.

Tools put in place and data collected by any government will be available for use and misuse by any future government.

As we have pointed out in relation to other executive orders, anything one administration can do by executive order, regulation, or legislation can be undone by the same means. Policy restrictions on the use of data cannot protect against its misuse by future governments that can change those policies.

Any proposal for data collection or government power should be evaluated according to the danger that data and those powers would pose in the event of the worst-case scenario of what sort of government and what individual officials might inherit them.

The ongoing #MuslimBan on citizens of certain countries — even dual citizens of more favored countries, and even asylum seekers — boarding flights to the US, is made possible only by a combination of measures put in place (largely without mass public challenge) by previous US administrations:

1. Requirements for air travelers to possess and show ID documents prior to boarding flights. (Anonymous passengers cannot be profiled, tracked, or controlled on the basis of their identities or the attributes in databases linked to their identities.)
2. Requirements for airlines to send government agencies identifying and other information about passengers.
3. Installation of control lines converting this notification  system into a permission system by preventing any airline from issuing a boarding pass or allowing a passenger to board unless and until it receives an individualized, per-passenger, per-flight “Boarding Pass Printing Result” (BPPR) message.
4. Rules for admissibility to the US that overtly discriminate against citizens (including dual citizens) of, and previous visitors to, specified  Muslim-majority countries, which were signed into law by President Obama on December 18, 2015. These build on earlier written TSA policies dating going back to 2008 that explicitly discriminate against travelers on the basis of citizenship of these countries.
5. “Carrier sanctions” that fine airlines or other common carriers that transport people who are subsequently denied admission to the US. (More on these below.)

Those who don’t want the #MuslimBan continued or expanded to other categories of targets and victims should resist all of these measures, and work to have each of them overturned as unconstitutional or repealed.

The locus of the #MuslimBan has shifted from airports in the US (back) to airports, airline offices, and travel agencies abroad, and from US government agents (back) to airline check-in and ticket sales staff and contractors.

“Airlines around the world are turning away passengers, refunding tickets and rebooking flights,” the Associated Press reported on January 29th. But that was a temporary problem affecting people who had already bought tickets or boarded flights when the executive order went into effect.

This article gets asylum and common carrier law all wrong, or ignores it, but accurately describes the factual situation with the #MuslimBan: “The pain of Trump’s immigration ban will persist after the airport protests have faded. The administration is smoothing out some of the chaos — which just means most people harmed by the ban will never make it onto a plane.”

Within a few days after President Trump issued his executive order, it was back to business as usual, with would-be travelers being refused ticketing or boarding by airlines, far away from the US and long before they could get close to US territory.

Every day, desperate asylum seekers and refugees fleeing war, persecution, and other mortal peril are turned away by airlines and airlines’ agents and contractors from buying tickets or boarding flights to the US and other potential countries of refuge. Governments encourage this, and airlines acquiesce (i.e. collaborate).

Some of these people die in the countries from which they can’t escape. Others die in the desert trying to walk across the US border, or trying to reach Europe on overcrowded boats that sink in the Mediterranean.

Governments in the US, the European Union, Australia, and elsewhere provide incentives for these airline practices through administrative sanctions ($3,000 per passenger in the US)  against those who transport anyone who isn’t admitted or whose documents aren’t deemed acceptable after they arrive.

We explained the problem in our submissions to a consultation on the rights of migrants by the UN Office of the High Commissioner for Human Rights in 2014 and 2015:

Some of the most important decision-makers for asylum seekers, refugees, and other migrants are airline and other common carrier ticket sellers and check-in staff. Many eligible asylum seekers are unable to reach places of refuge, and others die trying, as a direct result of improper denial of transportation by common carrier staff.

Many eligible asylum seekers could afford to purchase airline tickets or tickets on other common carriers (ferries, trains, buses, etc.) to travel to countries where, on arrival, they would be eligible for asylum. They risk their lives as “boat people”, and some of them die, not for financial reasons, but because airlines or other government-licensed common carriers improperly refuse to sell them tickets or deny them boarding….

Asylum seekers who are trying to leave a country where they are subject to persecution, and who are denied transport, are unlikely to have access to effective judicial review and redress through the courts of the country that is persecuting them. Airlines know that they can violate the rights of asylum seekers with de facto impunity….

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.

In accordance with numerous multilateral and bilateral agreements, airlines are licensed as common carriers. As such, they are required to provide transportation to all individuals willing to pay the fare and comply with the general conditions in their tariff.

In spite of this legal obligation, airlines claim that they are authorized to deny transportation to any individual who, in their sole discretion, the airline “believes” either (a) will not be admitted to the country of their intended destination, and/or (b) lacks any of the documents the airline believes are “required” for admission to that country.

However, airlines have neither the legal authority nor the competence to determine who will, and who will not, eventually be admitted to, or granted asylum by, any country. Asylum decisions can only be made by competent authorities, and only after the asylum seeker arrives in the country where they seek asylum.

It is impossible for anyone to predict with certainty, in advance, whether a particular person will be granted asylum in any particular country.

If an otherwise-qualified passenger insists, the clear duty of an airline — under the laws and aviation treaties pursuant to which they are licensed as a common carrier — is to transport that passenger, at her sole risk that she won’t be admitted to her intended destination. If an airline won’t transport a person to a country of potential refuge, it doesn’t matter what “right” that person theoretically has to seek asylum there.

Countries that allow airlines not to transport would-be asylum seekers who the airlines think won’t be admitted prevent legitimate asylum seekers from fleeing persecution or reaching places of potential refuge, and turn unqualified airline check-in staff or contractors into de facto asylum judges of first and last resort.

See additional links and references in earlier articles in our blog:

• The rights of migrants, refugees, and asylum seekers
• The human rights of migrants in transit
• UN human rights office cites our concerns about migrants’ rights

Airlines must decide whether they will (continue to) collaborate or whether they will (begin to) resist.

There are serious questions about the validity of these carrier sanctions, especially as applied to asylum seekers, and about any law purporting to restrict the duty of a common carrier to transport passengers on the basis of speculation about their admissibility on arrival to the country of their destination.

Airlines don’t want to get involved in immigration decision-making, and don’t want to have to carry deportees. Even if the deportee can be charged full fare (as is often the case), carrying passengers who are manacled and sometimes either sedated or violently resisting being deported back to persecution and possible death can be upsetting to other paying passengers.

Protests by other passengers on these flights are occasionally reported, but are rare, despite the routine practice of transporting deportees on flights that are also carrying ordinary passengers. It’s as though people being transported to concentration camps were carried on the regular trains sitting next to “good” citizens going on holiday or going about their business, without the latter complaining.

Governments hypocritically claim that as common carriers, even reluctant airlines are required to accept deportees (and sometimes armed guards “escorting” them) as passengers, while simultaneously allowing those same airlines “discretion” (and giving them financial incentives) to refuse passage to would-be asylum seekers.

If an airline refuses to board anyone who might seek asylum on arrival (and might be denied entry and returned to their country of origin), or who for any other reason might not be admitted, they can avoid these “messy” situations. But of course, that goes against the essence of being a common carrier in the first place: the duty to transport all passengers willing to pay the fare in the tariff.

Governments are to blame for this, but so are airlines that collaborate with these anti-asylum outsourced privatized “remote border” practices, and passengers who patronize such airlines.

Airlines have challenged these fines only on the grounds that they tried diligently to ban the people the government wants them to ban, but were unsuccessful in keeping asylum seekers off their planes through no fault of their own but rather through the cleverness and deceitfulness — motivated by desperation, of course — of asylum seekers. (See, “How travel restrictions turn refugees into criminals”.)

So far as we know, no airline anywhere in the world has gone to court to challenge the general validity of carrier sanctions or document requirements, demands to identity or provide information about passengers, or requirements for airlines to obtain government permission prior to boarding each passenger.

These airlines are acting just like the trans-Atlantic shipping lines that refused to transport Jewish refugees during the Holocaust because the shipping companies feared (justifiably) that these passengers might not be admitted to the US and that the shippers would have to bear the cost and inconvenience of returning them to Europe.

We think the public would support an airline that decided to stop having its staff act as outsourced and unqualified overseas asylum judges or stopped enforcing the #MuslimBan, and left it to government officials to decide who to admit, or not admit, after they arrive.

At a minimum, airlines could and should challenge all of these government efforts to surveil and control their passengers. Airlines often have legal standing, especially under US law, that passengers lack. Airlines should defend their passengers’ rights.

The more people travel internationally, the more likely they are to oppose restrictions on travel. An international airline that defied President Trump’s carrot-and-stick efforts to induce them to continue to serve as private enforcement agents for his #MuslimBan would likely have the support of most of its passengers.

The US clearly has no jurisdiction to prevent  a foreign-flagged airliner from taking off from an airport in a foreign country, regardless of who is on board. Once a plane has touched down in the US, the passengers have the right to seek asylum in the US.

Would President Trump really order the Air Force to shoot down a civilian airliner approaching the US from a country with which the US is not at war, solely on the grounds that it is carrying some Syrian asylum-seekers among its passengers? We don’t think so.

If you don’t like the idea of putting passengers on a regularly scheduled airline flight at that risk, perhaps the first such trial should be a charter flight. In the present climate of public opinion, we don’t think it would be hard for an airline to sell out such a charter flight with a mix of asylum seekers from blacklisted countries (their tickets paid for by crowd-sourced donations), paid volunteer ticket-holding passengers, and a crew of volunteer airline staff.

Carrier sanctions and airline practices have been back-burner issues for many activists. Their use as the key components in the perpetuation of the #MuslimBan and the pushing back of US virtual borders even further away from the physical border, and onto the territory of other countries from which flights depart for the US, should now put them in the spotlight.