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The Identity Project

Author Archives: Edward Hasbrouck

Oct 22 2012

US Department of Transportation ignores human rights

As we’ve noted many times before, the right to travel is spelled out more explicitly and in more detail in international human rights treaties, particularly Article 12 of the International Covenant on Civil and Political Rights, than in the U.S. Constitution (although it’s also implicit in several of the rights guaranteed by the First Amendment).

As we’ve also noted, each Cabinet-level head of an executive department was ordered by the President in 1998 (through an Executive Order that remains in force) to designate a “single contact officer” responsible for ensuring that the department carries out its functions (including rulemaking and other regulatory activities) in such a manner as to fully respect and comply with human rights treaties including the ICCPR, and to insure that complaints of human rights violations by the Department are responded to and reviewed.

It should be obvious that the Department of Transportation (DOT) has a key role in protecting the right to freedom of movement as guaranteed by Article 12 of the ICCPR.  And the Secretary of Transportation is expressly required by the Airline Deregulation Act of 1978 (49 USC 40101) to consider “the public right of freedom of transit through the navigable airspace” in issuing any DOT regulations.

Having found no indication that the DOT has ever designated a point of contact for human rights complaints, responded to any such complaints, or considered the right to freedom of travel in any rulemaking, we made a request under the Freedom Of Information Act for any records of DOT activities related to the implementation of human rights, consideration of human rights in rulemaking, or handling of human rights complaints.

We wouldn’t have been surprised if our FOIA request to the DOT had been ignored.  The DHS took more than five years to respond (improperly) to our complaints of violations of the right to travel, and after a year and a half the Department of State still hasn’t responded to our complaints of human rights treaty violations or our FOIA request for information about them.

To its credit, the Department of Transportation responded promptly to our FOIA request.

To DOT’s discredit, its response was that more than 30 years after being ordered by statute, and 20 years after being ordered by the President, to consider the right to freedom of travel in all its rulemaking activities, the DOT has no record of ever having done anything to carry out these explicit statutory and Presidential directives and obligations:

  • DOT has no record of ever having designated a point of contact for human rights complaints or implementation of human rights treaty obligations.
  • DOT has no record of any of the complaints of human rights violations it has received, what issues they raised, which provisions of which treaties they alleged had been violated, what if anything was done with them, or whether they were responded to.
  • DOT has never adopted any policies or procedures or issued any guidance to DOT components for the consideration of the right to travel, or any other human rights, in DOT rulemaking.
  • DOT has no record of any discussion of whether to carry out any of these responsibilities.
Oct 18 2012

US citizen banished by no-fly order: Is it because he stood up for his rights?

In another depressingly familiar episode in an ongoing saga of de facto banishment of US citizens from their own country, New York City native Samir Suljovic has been trapped in immigration limbo in Frankfurt since October 1st, following a visit to some of his relatives in Montenegro, because of a no-fly order from the DHS forbidding any airline to allow him to board a flight home to the USA.

What’s noteworthy in Mr. Suljovic’s case — other than the persistence of the DHS in these flagrant violations of the right of US citizens to return to their home country — is that he appears to be the same person who got some publicity two years ago when he sued a New York hotel for refusing to hire him unless he shaved off his beard, which he argued was an expression of his religious belief as a Muslim.

Based on what was said in the press, Mr. Suljovic would appear to have had a good case against the hotel. There’s plenty of case law about discrimination against people with religiously-required beards, mainly involving Sikhs and orthodox Jews, and his arguments were far from novel or extreme.

But in other cases, notably that of Julia Shearson, there are indications that DHS designations of “suspected terrorists” have been based on press reports of civil rights activism by Muslims.

The secrecy of the administrative “no-fly” decision-making process leaves us to wonder whether Mr. Suljovic, like Ms. Shearson, was singled out by the DHS for restriction of his right to travel because he stood up, publicly, for his rights as a Muslim.

If no-fly injunctions were issued, as they should be, by judges, following adversary fact-finding proceedings in which the burden of proof is on those who advocate restrictions on the right to travel, we wouldn’t have to wonder what (if any) evidence they were based on, or whether they were being used for invidious discrimination against particular religions or political activists.

Oct 17 2012

Cuba makes it easier to leave the country, while the US makes it harder

We’re pleased that Cuba has promulgated rules, effective January 13, 2013, which will eliminate the requirement for most (but not all) would-be emigrants to obtain the government’s permission to leave the country, and to make the issuance of a passport a matter of right for most Cuban citizens.

At the same time, the US has ordered airline common carriers not to allow any would-be passenger to board any international flight departing from the US without individualized prior permission from the government. Any attempt to leave the US, even by land, without a passport, has been criminalized, without any recognition of passport issuance as a right. The State Department, in its claimed “discretion” to deny passports to US citizens at whim, has increasingly been demanding that passport applicants answer impossibly detailed and irrelevant interrogatories to establish their identity and citizenship. At the same time, the State Department has tried to suppress knowledge of its own regulations which entitle passport applicants to establish their identity by the testimony of a witness rather than by paper credentials.

And the State Department continues to ignore our complaints that these practices violate US obligations under the same provisions of the same human rights treaties that the US has invoked against Cuba.

So our challenge to those in Congress who have criticized Cuba’s restrictions on freedom of movement is this:

By January 13, 2013, when these new rules take effect in Cuba, will you have introduced and enacted legislation to require the State Department to treat passport issuance as a matter of right for US citizens, and to repeal the prohibitions on departure from the US without government permission?

We encourage our readers and supporters to let your representatives know that you expect the US to do at least as much as Cuba’s government to effectuate the right to freedom of movement.

Oct 03 2012

Government Surveillance of Travelers

For those attending today’s discussion of Government Survelliance of Travellers and the DHS “Automated Targeting System” (ATS) at the Brennan Center for Justice at NYU School of Law, or those who can’t make it but are interested in the topic, here are the slides from the presentation by Edward Hasbrouck of the Identity Project (PapersPlease.org), and links to additional references:

Today’s event is open to the public, so please join us if you are in New York and free at mid-day.

Sep 25 2012

“Flying While Handicapped”

Last week the TSA’s Aviation Security Advisory Committee (ASAC) held its second meeting since being reconstituted almost a year ago.

As in the past, the latest reincarnation of ASAC remains largely window-dressing, lacking authority, with no civil liberties or privacy experts or consumer advocates among its members, and with a track record of unconcern for transparency in its own operations.

But since the real TSA decision-makers remain walled off from public input or questioning in their “secure” fortress-offices, comments at ASAC meetings sometimes serve as the only available way for members of the public to let the TSA know what we think.

Wendy Thomson has a report on the latest ASAC meeting, the most interesting portion of which was undoubtedly her own testimony about flying while handicapped:

I have an artificial leg. I have joint replacements. I have metal plates. I am cyborg. I used to fly a lot – in my original comments you can tally the 21 airports I have used, many more than once, between 2001 and October 2010. Those dozens upon dozens of flights introduced me to being stripped down to my pantyhose while screeners were asking themselves whether they would require me to get totally naked, all while we were in a makeshift lean-to in Concourse A. I have had hands down my pants. I have had my breasts checked after the MMW screener called out “check her thigh.” I spent 2-1/2 hours in Dallas once insisting that TSA agents could check only what alarmed. Dressed in a similar fashion as I am today, I finally turned and left after the TSA insisted they needed to check my breasts because my right knee-to-ankle set off the metal detector.

I have been so groped and molested in so many ways that I am now properly traumatized. I was actually going to take my leg off at this point and set it up here on the dais, but I am hoping that such an extreme level of theatrics will not be required to garner your attention. I actually did that for several years: before I had these metal plates and joints I figured out that if I merely took this leg off and placed it on the conveyor belt I was not harassed. Leg on: breast and butt fondle, hand swabs, the whole nine yards. Leg off: none of the above. So now I’m thinking that I would need to take this leg off and hop on over to the AIT machine, stand there like a total criminal as the machine tried to figure out what to do when there is someone who doesn’t have two feet to spread their legs.

Spread their legs? Think about that phrase for a minute….

Read Ms. Thomson’s full statement here.

Sep 24 2012

State Dept. admits passport form was illegal, but still wants it approved

The new U.S. passport application forms are back, worse than ever.

Ignoring massive public opposition, and despite having recently admitted that it is already using the “proposed” forms illegally without approval, the State Department is trying again to get approval for a pair of impossible-to-complete new passport application forms that would, in effect, allow the State Department to deny you a passport simply by choosing to send you either or both of the new “long forms”.

Early last year, the State Department proposed a new “Biographical Questionnaire” for passport applicants, which would have required anyone selected to receive the new long-form DS-5513 to answer bizarre and intrusive personal trivia questions about everything from whether you were circumcised (and if so, with what accompanying religious rituals) to the dates of all of your mother’s pre- and post-natal medical appointments, your parents’ addresses one year before you were born, every address at which you have ever resided, and your lifetime employment history including the names and phone numbers of each of your supervisors at every job you have ever held.

Most people would be unable to complete the proposed new form no matter how much time and money they invested in research. Requiring someone to complete Form DS-5513 would amount to de facto denial of their application for a passport — which, as we told the State Department, appeared to be the point of the form.

The State Department’s notice of the proposal in the Federal Register didn’t include the form itself. After we published the proposed Form DS-5513, the story went viral and more than 3,000 public comments objecting to the proposal were filed with the State Department in the final 24 hours of the comment period.

After that fiasco, the State Department went dark for several months, and claimed that they would “revise” the form. But they didn’t give up, and apparently they didn’t listen to (or didn’t care) what they had been told by members of the public in our comments.

The State Department is now seeking approval for a (slightly) revised Form DS-5513 as well as a new Form DS-5520, also for passport applicants, containing many of the same questions.

The State Department no longer wants you to tell the passport examiner about the circumstances of your circumcision, but does still want to know the dates and locations of all of your mother’s pre- and post-natal medical appointments, how long she was hospitalized for your birth, and a complete list of everyone who was in the room when you were born. The revised forms no longer ask for all the addresses at which you have lived, but only for those addresses you are least likely to know: all the places you lived from birth until age 18.

And so on, as you can see for yourself on the proposed Form DS-5513 and Form DS-5520.

Read More →

Sep 23 2012

Phillip Mocek v. Albuquerque et al.

Are TSA staff and police immune from liability when they violate travelers’ rights?

 

Are First Amendment rights not “clearly established”?

These are now the issues before Judge James O. Browning of the U.S. District Court for the District of New Mexico in Phillip Mocek v. Albuquerque et al., a Federal civil rights lawsuit brought by “Freedom Flyer” Phillip Mocek following his acquittal by a jury on all of the trumped-up criminal charges brought against him after his false arrest at a TSA checkpoint at the Albuquerque (ABQ) airport.

Here’s how this case came about, what has happened, and where things now stand:

Read More →

Sep 22 2012

“Automated Targeting System” briefing 10/3 at the Brennan Center

Identity Project consultant and policy analyst Edward Hasbrouck will give a brown-bag lunch presentation on the DHS “Automated Targeting System” and government surveillance and control of travelers on Wednesday, October 3, 2012, 12:30 – 2 p.m., at the Brennan Center for Justice, New York University School of Law, 161 Avenue of the Americas (6th Ave.), 12th Floor, New York (in SoHo, 1/2 block from the Spring St. station on the C and E subway lines).

Hasbrouck will give an introduction to the DHS “Automated Targeting System” (including examples of data from ATS records obtained through Privacy Act and FOIA litigation), its role in US government surveillance and control of travelers, and the civil liberties and human rights issues it raises.

The “Automated Targeting System” (ATS) is one of the largest of post-9/11 warrantless dragnet surveillance programs.  Built at a cost of more than $2 billion in government-mandated changes to commercial travel IT systems, to which DHS now has root access, ATS “ingests,”  archives, and mines complete mirror copies of all international airline reservations (“passenger name record“) data for travel to, from, or via the US. ATS records include where, when, and with whom you traveled; your IP address; what credit card was used; whether you asked for a kosher or halal meal; and whether you and your traveling companion asked for one bed or two in your shared hotel room.

While little known or debated in the US, ATS has been at the center of intense disputes with the European Union and Canada over US demands for access to travel reservation data from other countries.

Edward Hasbrouck works with the Identity Project on travel-related civil liberties and human rights issues. An award-winning travel journalist, blogger, and author, he also has 15 years of travel industry experience in airline reservations technology and travel agency  operations. Hasbrouck has testified before the TSA as well as the European and Canadian Parliaments on issues related to government access to airline reservations, and was the plaintiff in a recently-concluded Privacy Act and FOIA lawsuit seeking ATS records about himself as well as information about ATS data-mining capabilities.

The event is free and open to the press and the public.

Sep 21 2012

Department of State Form DS-71: “Affidavit of Identifying Witness”

We don’t normally require our friends and family to show us their papers to establish their identities. We have better ways of recognizing who they are.

Many US government agencies, however, seems to want to make government-issued ID credentials the only way to establish who we are — even when Federal regulations require them to accept other forms of evidence of identity.

Case in point: Department of State Form DS-71: “Affidavit of Identifying Witness” for passport applicants.

As we’ve noted previously, the State Department’s own regulations at 22 C.F.R. § 51.28 entitle applicants for US passports to establish their identity by the affidavit of an identifying witness, in lieu of documentary evidence of identity.  But it seems like the State Department doesn’t really respect this right, and prefers to get all applicants to provide papers, rather than people, to “prove” who we are.

As of today, the version of Form DS-71 posted on the State Department’s website is an obsolete one whose use was approved by the Office of Management and Budget only until Dec. 31, 2005. Elsewhere on the State Department site, the link for Form DS-71 in the index of passport forms links to a PDF of an otherwise-blank page that says, “Please visit your local [passport] Acceptance Facility to obtain this form.”

Disturbingly, we’ve received reports from people who went to the State Department’s own passport offices, accompanied by witnesses prepared to identify them, and were told that no current version of Form DS-71 was actually available.

We can’t see any reason not to make this form available online with all the rest of the passport forms, much less not to have it available at passport offices, other than to hide its existence and discourage its use.

Having let its approval for any version of this form lapse for several years, and having now obtained only temporary approval that expires at the end of this month, the State Department is now in the process of seeking renewed OMB approval for a revised form, to be used for the next three years.

According to to the State Department’s application to OMB (which includes both the current and proposed versions of Form DS-71), the number of passport applicants using this form has declined dramatically, from 163,400 in 2009 to 44,000 this year.

The State Department claims that this decline is due to greater use of other “public records” by passport examiners. But a better explanation for the abrupt decline in use of this form is its removal from the State Department website and from availability at passport offices. Applicants for passports are providing other identifying records because they aren’t being told they have the alternative of establishing their identity with an affidavit from an identifying witness.

Have you tried to establish your identity to the Passport Office by having a witness identify you? Have you had trouble obtaining the proper form, or been discouraged from using it in favor of obtaining and providing other types of evidence of identity?  Please let us know.

[Update: Here’s the version of Department of State Form DS-71, “Affidavit of Identifying Witness”, most recently submitted to and approved by OMB.]

Sep 12 2012

Secret “watchlist” used as basis for preventive detention

Secret, standardless, extra-judicial administrative “watchlists” of supposed terrorists aren’t just being used to decide who to “watch” — they are now being used as the basis for preventive detention.

A Charlotte, North Carolina man arrested for allegedly driving with a suspended license during the Democratic National Convention had his bail increased to $10,000, cash-only, and spent 36 hours during the convention in jail before getting his bail reduced, on the basis of a police report that gave the basis for detention as, “Known activist + protester who is currently on a terrorist watchlist. Request he be held due to DNC being a National Special Security Event.”

James Ian Tyson told the Charlotte Observer he was shocked to learn that he was on a terrorist watch list. “I haven’t done anything remotely criminal involving politics. No one knows how you get on this list … or the accountability process or, most importantly, how they get off this list….  I am a local Charlottean and an activist and I believe this is an attempt to stifle my First Amendment rights and keep my voice from being heard.”

According to this CNN report and video interview with Tyson and his lawyer, “Tyson … says he has no idea how he wound up on the government’s terrorist watch list. He just wants to save the rain forest. The only dings on his record, at least as far as he knows, consist of fishing for trout out of season and driving while impaired.”

As U. of Miami law professor Michael Froomkin notes,  “[T]his is the first documented example of a non-air-travel-related domestic consequence of being on a ‘terrorist watch list”… I think this small incident is actually a big deal.”