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The Identity Project

Monthly Archives: June 2023

Jun 26 2023

9th Circuit rejects TSA claim of impunity for checkpoint staff who rape travelers

Last December, we attended and reported on oral argument before the 9th Circuit Court of Appeals in a case in which the Transportation Security Administration (TSA) argued that TSA checkpoint staff have absolute immunity from lawsuits for assault, even sexual assault or rape, committed against travelers they are “screening”.

We’re pleased to report that today the 9th Circuit panel of judges rejected the TSA’s claim of impunity. The three judges found unanimously that the Federal Tort Clams Act (FTCA) allows lawsuits against the TSA for damages caused by checkpoint staff who assault travelers. The 9th Circuit thus joins every other Circuit Court of Appeals (the 3rd, 4th, and 8th) to have addressed this issue in a published opinion.

The case decided today by the 9th Circuit will now return to the U.S. District Court in Las Vegas for much-belated consideration of the claim against the TSA and its officers. The precedent set by today’s decision will apply throughout the 9th Circuit, the largest of the Federal judicial circuits, including all of the states on the West Coast.

Kudos to Jonathan Corbett, Esq., who has represented the plaintiffs in each of these cases.  Coals for Christmas to the TSA for continuing to argue for impunity for its staff to one Circuit Court after another, despite the growing weight of precedent against the agency and, perhaps more importantly, the moral repugnance of arguing that any agents of the government should be entitled to assault or rape members of the public with impunity.

Jun 13 2023

98% of names on U.S. travel blacklist are Muslim

98% of the names on the U.S. government’s travel blacklists, including all of the top 50 names that appear most frequently on those lists, appear to be Muslim, according to a statistical analysis commissioned by the Council on American Islamic Relations (CAIR).

This analysis of the so-called “watchlist” (a euphemism for “blacklist”) is included in a report released this week in conjunction with the annual Muslim Advocacy Day on Capitol Hill organized by the US Council of Muslim Organizations (USCMO).

When the U.S. government’s “No-Fly list” and “Selectee list” were made public earlier this year, we were the first to point out that more than 10% of the entries on the No-Fly list (174,202 of 1,566,062) contain “MUHAMMAD” in either the first or last name fields, in addition to those entries with other spellings of Muhammad.

CAIR’s latest report goes into more detail:

CAIR has studied more than 1.5 million entries on a 2019 version of the FBI’s list, provided to us by a Swiss hacker who found them online after a regional air carrier accidentally posted them to the public internet. One scroll through it reveals a list almost completely comprised of Muslim names. In fact, more than 350,000 entries alone include some transliteration of Mohamed or Ali or Mahmoud and the top 50 most frequently occurring names are all Muslim names….

CAIR shared the leaked list with statistical experts for review to determine what percentage of the list is Muslim. The expert analysis of the people on the list—approximately 1.5 million entries—indicates that more than 98% of all records in the watchlist identify Muslims.

In its report and at the press conference announcing its findings, CAIR called out the lack of any legislative basis for secret blacklists, the difficulty of challenging secret decisions in court, and the failure of Congress to exercise its oversight responsibilities:

Congress did not give the FBI this authority. There is no law that made the watchlist…. But neither the FBI nor any other government agency should have a secret list. They’ve abused the one that they have now, and there is no such thing as a good, lawful kind of secret government list made available to hundreds of thousands of government actors. It is time to bring this practice to a close.

CAIR and other advocates for the civil rights of Muslim Americans are making this issue a priority in their meetings with members of Congress this week. We hope that their efforts will help prompt members of Congress to reintroduce and enact the Freedom To Travel Act or include it in other omnibus legislation.

Jun 12 2023

TSA misstates the case law on ID to fly

During an online panel last week hosted by the Cato Institute, TSA Privacy Officer Peter Pietra made some bold but false claims (starting at 18:05) about the case law on ID to fly:

Patrick Eddington, Cato Institute: I’m trying to understand if there is in fact a statutory basis for TSA to essentially say, “If you don’t show us an ID, you’re not getting on that airplane.”

Peter Pietra, TSA Privacy Officer: … I know that there was a case… where John Gilmore — Gilmore vs. Gonzales, I think was the case — did challenge ID requirements, and the 9th Circuit upheld them…. The one … case that I’m aware of being brought resulted  in upholding TSA’s ability to require ID.

But as Mr. Pietra and the TSA should know, that’s not what was decided in Gilmore v. Gonzales.

Based on pleadings submitted to the court ex parte and under seal by the TSA, the 9th Circuit found that the TSA’s “identification policy” did not require passengers to show ID credentials in order to fly, but provided an alternative of a more intrusive search:

The identification policy requires airline passengers to present identification to airline personnel before boarding or be subjected to a search that is more exacting than the routine search that passengers who present identification encounter….

Gilmore had a meaningful choice. He could have presented identification, submitted to a search, or left the airport. That he chose the latter does not detract from the fact that he could have boarded the airplane had he chosen one of the other two options.

Neither Mr. Gilmore nor his lawyers saw or had any chance to rebut the claims made to the 9th Circuit judges by the TSA in its secret submissions. But the court’s description of the TSA’s identification policy as not requiring passengers to show ID, but allowing a more intrusive search as an alternative, was based entirely on the TSA’s own claims.

Having gotten the court to uphold its policy by representing that policy to the court as not requiring passengers to show ID, the TSA can’t now claim that the court’s decision “upheld” a policy requiring passengers to show ID — a policy the TSA specifically disclaimed in that litigation. The TSA told the 9th Circuit in its sealed, ex parte filings that pursuant to its policy Mr. Gilmore could have flown without ID if he had submitted to a more intrusive search, and the 9th Circuit decided the case on that basis.

Neither the 9th Circuit panel in Gilmore v. Gonzales, nor any other court, has reached the question of whether a requirement for airline passengers to show ID to fly has any statutory basis or would be Constitutional, much less upheld such a requirement

Mr. Pietra went on to suggest that, if the Constitutionality or statutory basis for requiring airline passengers to show ID were in question, the issue would have been litigated. But that ignores the fact that, when Mr. Gilmore tried to litigate exactly this issue, the TSA evaded the issue by denying to the court that it had a policy requiring ID to fly.

We continue to believe that both the TSA’s de facto efforts to require ID to fly, and any TSA policy to require ID to fly, lack a statutory basis and are unconstitutional. We hope that passage of the Freedom To Travel Act will clarify this issue and make it possible for those who are prevented from flying without ID to obtain redress through the courts.