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The Identity Project

Author Archives: Edward Hasbrouck

Jan 21 2011

DHS, FBI still try to evade judicial review of no-fly orders

A few minutes ago, a United Airlines flight carrying US citizen Gulet Mohamed reportedly landed at Dulles Airport outside Washington, DC. (video 1, video 2)

That shouldn’t be noteworthy, but it is.

Faced with an imminent judicial slapdown, the DHS and FBI have ended their extra-judicial banishment (“proxy rendition”) of a US citizen who has been detained and tortured in Kuwait but was refused boarding by this same airline earlier this week, despite holding a valid full-fare ticket purchased by his family, when Kuwaiti authorities tried to deport him to the US.

Although Gulet Mohamed has been charged with no crime in either the USA or Kuwait, and although he has been given direct notice of no injunction or other order restraining his right to return to the US, US government spokespeople have confirmed that the US ordered airlines subject to US jurisdiction not to transport him. Presumably, the no-fly order to United Airlines took the form of a “not cleared” message (or a non-response, the default “fly/no-fly” state being “no” in the absence of explicit individualized “clearance”) after Mohamed’s PNR and API date were sent by the airline the DHS as part of the APIS and/or Secure Flight schemes for surveillance and control of air travel.

Kuwaiti law reportedly requires deportation by direct flight directly to the deportee’s destination, at least where such a flight exists. Even if Kuwait allowed deportation by ship, API data and “clearance” permission is required from cruise and ocean shipping lines carrying  passengers to the US, as well as airlines.) So Gulet Mohamed remained in detention in Kuwait, under imminent threat of renewed torture (and under continued interrogation by the FBI, without his lawyer present.

On Monday, Mr. Mohamed was denied passage back to the US by United Airlines. On Tuesday, his lawyers from the Council on American-Islamic Relations filed suit, (copy of complaint) seeking an emergency order prohibiting the DHS or FBI from interfering with Mr. Mohamed’s right of return to the US.  Within hours of the filing of the case on Tuesday, a hearing on their motion was held before a Federal judge, who said the government’s actions appeared, on their face, to be a violation of Mr. Mohamed’s fundamental rights.

The judge ordered the parties to return to his court on Thursday, the plaintiff (Mr. Mohamed) to provide declarations substantiating the allegations in the complaint and the defendants (DHS and FBI) to show cause why an injunction should not be issued.

But rather than make any attempt to justify their actions in extra-judicially exiling Mr. Mohamed form his country, the government’s lawyers responded both aat Tueaday’s hearing and at the follow-up hearting on Thursday by telling the judge that they compliant would soon be moot because they were making “arrangements” to change their orders to the airline and allow Mr. Mohamed to return home.

On Thursday night (early Friday morning Kuwait time), Kuwaiti authorities once again tried, and this time were allowed, to put Mr. Mohamed on a flight home to the U.S. as a deportee from Kuwait. That flight landed at Dulles early Friday morning, Washington time.

Mr.Mohamed, it should go without saying, has never been charged with any crime, either in the U.S. or Kuwait, although we don’t yet know how he’ll be treated by the US on arrival. A US citizen has the right to remain silent at the border or airport when re-entering the country. But given their prior actions and repeated attempts to question Mr. Mohamed without his lawyer, we wouldn’t count on the DHS or the FBI to respect his rights now. [Update: FBI Interrogating Gulet Mohamed Without Counsel at DC Airport]

We’re pleased that Mr. Mohamed is back home in his country.  But we are disturbed that the U.S. government, through a case-by-case exercise of standardless administrative “discretion” exercised only after a lawsuit was filed, has once again fulfilled its repeatedly and explicitly stated goal of avoiding having no-fly decisions and orders subjected to judicial review.

In short, Mr. Mohamed was allowed to come home in order to insure him justice, but in order to insure that the DHS and FBI remain free to inflict similar injustice on others in the future.  As Mr. Mohamed’s lawyer, Gadeir Abbas of CAIR, put it earlier in the week, “The reason I fully expect the government to have Gulet on a plane back by Thursday is that they want to continue this objectionable, immoral, and patently unconstitutional practice.

Mr. Mohamed’s lawsuit is not moot, and will continue. His treatment appears quintessentially “capable of repetition, yet evading review.”

We’re left with this:

In the face of a judicial demand to proffer a justification for its no-fly orders, the government made no attempt to do so.  Instead, they indicated by words and deed that they were more afraid of allowing a Federal judge to review the legality of their actions than they were of allowing Mr. Mohamed — who they had claimed it would be too dangerous to allow on any plane, even seated between armed air marshals — to come home to his country.

When an agency of the U.S. government is more afraid of judicial review than of terrorism, one can only wonder what else — worse even than the torture to which Mr. Mohamed was subjected by U.S. proxies in Kuwait — it has to hide.

Jan 10 2011

Interviews with Antiwar.com and KPFK radio

We were interviewed Friday on Scott Horton’s “Antiwar Radio” podcast on Antiwar.com and on KPFK Pacifica Radio in Los Angeles (play stream) (download).

The two half-hour interviews cover much of the same ground. We recommend the one on Antiwar.com.

Here are some links for more information about things we mentioned on the show:

Jan 08 2011

Tidbits from the TSA show “screening” being used as illegal general criminal dragnet, not for aviation security

The TSA has reviewed 929 pages of policies we requested, and released one page of them and parts of 12 other pages. All the rest are still being kept secret.  But even those tidbits show that the TSA is exceeding its legal authority.

The TSA continues to drag its feet in responding to our outstanding Freedom Of Information Act (FOIA) requests for the policies and procedures that they expect travelers to comply with.  When the TSA answers our requests at all, the answer is mostly, “No.”

Case in point: The letter we just received from the TSA, dated December 15, 2010, in response to the FOIA request we sent on December 9, 2009.  The TSA took more than a year to answer, even though it is required to release records requested under FOIA within at most 30 business days.

We asked for various TSA policy documents whose existence was revealed when the TSA posted a copy of its “Screening Management Standard Operating Procedures” (SOP) on a public government website. (We are currently appealing their refusal to release the current SOPs.)

One of the few excerpts the TSA chose to release was the “TDC Referral Form” (see page 16) used by “travel document checkers” for reporting travelers they have “referred” for further action such as a ordering them to submit to a more intrusive search or interrogation, summoning local law enforcement officers, etc.  Although courts have upheld administrative searches at airports only when they are limited to the detection of weapons, explosives, or other threats to aviation, neither “suspected terrorism” nor any other “threat to aviation security” appears in the TSA’s menu of reasons for arrest:

  1. Suspect documents
  2. Outstanding warrant
  3. Suspect drugs
  4. Undeclared currency
  5. Illegal Alien
  6. Other

On its face, this document makes clear that TSA “screening” is being used primarily for purposes that are outside the TSA’s legal authority, as a general screening dragnet for illegal drugs and other crimes and not for the limited purpose of aviation safety or security.

And this is true specifically of the travel document checks, not just of TSA screening in general.

The form also says that, “No personally identifiable information is permitted in this database,” even though the form includes drivers license, passport, government ID, military ID, and visa numbers. Presumably, this is an attempt to evade having the Privacy Act applied to these referral reports.

Bizarrely, the TSA withheld the policies that relate directly to the obligations of travelers as pertaining primarily to internal TSA procedures, while posting those policies that actually are primarily internal, and directed at TSA staff and contractors rather than the public, on a new page on the TSA website.

Perhaps the most interesting of these, in light of the TSA’s past actions, is the policy on issuance and use of administrative subpoenas such as those the TSA served on bloggers and journalists to try to find the sources of their stories about other leaked TSA policies. The version now posted was reviewed in October, 2010, after the TSA had withdrawn those subpoenas to bloggers and journalists. but it’s unclear whether any changes were made to the policy. The TSA policy still contains no mention of the Federal law which restricts searches of journalists’ work products and other material, or any specific policies for subpoenas against journalists.  That’s especially odd in light of the fact that the relevant law, 42 U.S.C. 2000aa, also applies to searches at TSA checkpoints (and, except to the extent such searches are conducted solely to enforce customs laws and not immigration or other laws, to CBP searches at border crossings and international air and seaports).

Jan 07 2011

US wants access to PNRs of all travelers to and from Pakistan

The US government has sought access to all Passenger Name Record (PNR) of air travelers between Pakistan and the rest of the world, according to a report in the local Express Tribune newspaper based on interviews with anonymous officials in Pakistan’s Foreign Office:

The proposed plan also includes the deployment of US homeland security officials at Pakistan’s airports for enhanced scrutiny of passengers travelling to America.

“Initially, they had asked for the record of all passengers travelling outside Pakistan,” the official was quoted as saying. “We resisted that idea and now they are asking for the record of passengers who travel to the US from Pakistan.”

…[A]nother official, who is privy to the discussions between the two countries on the issue…. said the US believes that the step would ensure Pakistani passengers have a “trouble-free” journey.

“But we believe this idea is highly intrusive,” the official said.

Pakistani citizens have been systematically harassed by the DHS since its creations, at borders and airports and through the “special registration” program for citizens of selected countries, which affected more Pakistanis than citizens of any other country.  So the idea that any Pakistani is likely to have a “trouble-free” trip to the US any time soon is a sick joke.

What’s more significant about this US request is that it shows the lack of any limits on US claims to extra-territorial (and extra-judicial) authority to monitor, record, and control all worldwide air travel, regardless of whether it involves US citizens, US-flag aircraft, US airports, or US airspace — and the centrality of PNR access rules to the US quest for global hegemony over travel permissions.

Jan 06 2011

More US violations of citizens’ right of return

In yet another flagrant violation by the US government of its obligations as a party to the International Covenant on Civil and Political Rights, the US has placed a US citizen on the no-fly list while he is under detention and awaiting deportation from Kuwait, where he reports having already been tortured. Because he can’t return to the US without flying, Kuwait won’t release him from custody (just as the US refuses to release prisoners in Guantanamo who have nowhere else to go except the US).

The New York Times broke the story yesterday of “Gulet Mohamed, a Somali-American who turned 19 during his captivity.”  Today Glenn Greenwald has more including raw audio of his telephone interview with Gulet Mohamed, while Mother Jones reports on a press conference by his attorneys and members of his family back in the USA.

We’ve reported here and here on previous incidents of US citizens being denied their right of return, although none with such serious allegations of torture or where they were being detained abroad — not merely stranded in de facto extra-judicial exile — as a result of being unable to return to the US.

Article 12 of the ICCPR provides that, “Everyone shall be free to leave any country, including his own…. No one shall be arbitrarily deprived of the right to enter his own country.”  But the US ratified the ICCPR with the reservation that it would not be “self-executing,” and still has not enacted any legislation explicitly effectuating the ICCPR or creating a cause of action in US courts for actions in violation of US obligations under the ICCPR. So neither Gulet Mohamed nor any of the other similarly-situated US citizens can raise the treaty violation in US courts.

Read More →

Jan 06 2011

DHS says they should get our PNR data, but we shouldn’t

Secretary of Homeland Security Napolitano is in Brussels today, lobbying the European Union to allow the DHS to access airline reservation Passenger Name Record (PNR) data on the same day that DHS lawyers will be facing us in court in San Francisco to argue that nobody — not even US citizens — should have the right to access their own PNR data held by DHS.

Napolitano is reportedly stopping in Brussels on her way back from Israel, where she “visited Ben Gurion International Airport to meet with airport officials to discuss ways both nations are enhancing global aviation security while streamlining legitimate travel and trade,” i.e. expanding the use of Israeli-style ethnic profiling and discrimination at US airports.  According to one report on Napolitano’s trip, that’s one of the outcomes of the ongoing DHS policy laundering through ICAO:

Following the attempted terrorist attack on a Detroit bound airliner on Dec. 25, 2009, the Department of Homeland Security worked with the International Civil Aviation Organization (ICAO) and international partners including the Israeli government, as well as the private sector on a global initiative to strengthen the international aviation system against the evolving threats posed by terrorists.

Following five regional aviation summits across five continents, 190 countries adopted a historic Declaration on Aviation Security at the ICAO Triennial Assembly in October, forging a historic new foundation for aviation security.

In response to our lawsuit, US Customs and Border protection (the division of DHS that keeps PNR dossiers and other international travel records) has claimed that our initial request wasn’t signed or dated, that it didn’t include a declaration attesting to the requester’s identity and authorizing release of his records to our attorney, that they didn’t receive our administrative appeal, and that they didn’t learn of the existence of our 2007 appeal until February 2009, even though they signed a postal receipt for it in 2007 and we queried them repeatedly as to its status and called it to their attention in a formal filing with them (see page 5) in August 2008.

DHS is also claiming in response to our lawsuit that there are no logs showing what queries were made to search for or retrieve our PNR and other data, despite the repeated claims in their Privacy Impact Assessments that all such access is logged. See, for example, page 13 of the PIA for ATS (the system of records that includes PNRs) “ATS retains audit logs for all user access,” and page 16 of the PIA for TECS (one of the other systems of travel records), “Extensive audit logs are maintained showing who has accessed records and what changes, if any, were made to the records.”

We don’t yet know why DHS has lied about the facts and contradicted their prior claims.  But they have more reasons to do so than simple incompetence or disorganization.  And this is part of a pattern that isn’t limited to the particular Privacy Act and FOIA requests at issue in this case. We’ve had consistent difficulty in getting our requests and complaints acknowledged and docketed.

Why?

Read More →

Dec 21 2010

CBP’s answer to our lawsuit: Deny everything, and claim that nobody has any rights

Where has your PNR data gone?

[Where has your PNR data gone? (click image for larger version or here for details)]

The U.S. government has filed its initial answer to our lawsuit against U.S. Customs and Border Protection (CBP) for illegally withholding records of its travel surveillance system, and an initial procedural hearing in the case has been scheduled for Thursday, January 6, 2011, at 10 a.m. in San Francisco.

But if the government’s claims are true, the implications of some of them are shocking. In particular, they claim that, “Plaintiff was provided all documents that he is entitled to by law,” even though — like everyone else who has requested their records from the “Automated Targeting System” (ATS) — we have never received anything that was even claimed to be in response to my request for the “accounting of disclosures” required by the Privacy Act. Nor did we receive anything which was even claimed to be the “risk assessments” made of me, or the rules for determining those risk assessments, both of which were mentioned in CBP’s years-belated official notice of the contents of the ATS.

In other words, the government is claiming in answer to our lawsuit that nobody — not even U.S. citizens — has any legal entitlement to know what other government agencies or third parties have received their travel records including PNR’s from CBP, what “risk” scores (used to decide whether to allow us to fly, or how to treat us) have been assigned to us, or how those scores have been generated.

So much for any pretense of transparency, accountability, or access rights. Nobody has any right to know who has gotten our PNRs, or how they are being used against us.

Read More →

Dec 08 2010

Phil Mocek trial postponed again; no hearing Thursday

Yesterday, as we’ve reported, Phil Mocek and his attorney were ready for trial, but the prosecution asked for a delay to allow them more time to review the video evidence of the events at the TSA checkpoint — despite defense counsel’s statement to the judge that the prosecution had already been aware of this evidence. and that it only depicts facts that should have been known to the prosecution.

The trial was originally expected to take two to three days. Judge Kevin Fitzwater continued the start of the trial until Thursday, but also said that he is doing military reserve duty next week and the following week. So a trial that started this Thursday would have had to go to the  jury by the end of the day Friday, or be interrupted for two weeks in mid-trial, with unpredictable effects on jurors’ memories of testimony. It’s also possible that whatever issues the prosecution has with the defense video evidence will lengthen the time the prosecution will take to present their case or question defense witnesses.

Not surprisingly in light of all this, we’ve been told by Mr. Mocek that the trial is being postponed to a date to be determined later (probably in January or February), and there will be no further court hearing or appearance by Mr. Mocek on Thursday or any other day this week.

Read More →

Dec 07 2010

TSA releases list of SOPs — but says they’re all secret

Eleven months after the deadline for their response set by the Freedom Of Information Act (FOIA), the TSA has finally responded to our request for the TSA “Standard Operating Procedures” referred to in December 2009 testimony to Congress by TSA Acting Administrator Gale Rossides.

The TSA did give us the list of SOPs (the first time this has been disclosed), but withheld the SOPs themselves in their entirely.  [We have appealed that withholding.]

There are no laws or published regulations defining what the TSA is permitted to do, and what travelers are required to submit to, in the name of TSA “screening”.  As a result, the TSA’s “Standard Operating Procedures” — even though they aren’t binding on either the TSA or travelers — are the most detailed written documentation of what is “supposed” to happen at TSA checkpoints.

We are entitled to know what powers the TSA claims over us, and what rules they claim we have to follow.

If public-spirited leakers have access to any of these documents, we encourage you to make them public, directly or through us, through Wikileaks, or through other investigative reporters:

  • Screening Checkpoint SOP
  • Screening Management SOP
  • Checked Baggage SOP
  • Advanced Imaging Technology (WBI) [listed twice — does this mean that there are 2 such SOPs?]
  • Playbook SOP
  • Colorimetric SOP
  • Stand Off Detection
  • Visible Intermodal Protection and Response
  • Bomb Appraisal Officer
  • SPOT
Dec 07 2010

Phil Mocek’s trial continued to Thursday, December 9th

What is the TSA afraid of? [TSA: Goon squad or Keystone rent-a-cops?]

When the case of State of New Mexico v. Phillip Mocek (misspelled in the court docket as “Moesack”) was called this morning in Bernalillo County Metropolitan Court in Albuquerque, the defense was ready for trial.

But Assistant District Attorney Dan Rislove claimed that he had only just yesterday learned of the existence of additional video evidence, and needed more time to review this video.

Defense attorney Molly Schmidt-Nowara told the court that the prosecution had already been aware of the existence of this video, but agreed to a 2-day delay of the trial until 9 a.m. Thursday morning, December 9th, to allow the prosecutor more time to review the video.

Most of the Albuquerque police and TSA “officers” (not) already identified in the videos and other records released in response to Mr. Mocek’s requests for public records were present in court.

But when (by prior arrangement and with the court’s explicit prior permission) we began photographing those in attendance, the TSA and police became visibly agitated, to the point of apparent near-panic. They got the prosecutor to point out our camera to Judge Kevin Fitzwater. Judge Fitzwater, however, said that he was already aware of our camera and audio recorder and had given us permission to use them as long we didn’t record or photograph members of the jury pool, none of whom were yet in the room.

Meanwhile, the men from the TSA held up manila folders for the remainder of the hearing to hide their faces — already familiar from their own videos and surveillance camera photos — from any photos after our first one reproduced above.  It seems that the intense fear of public scrutiny they showed in going after Mr. Mocek for allegedly trying to take photos at the checkpoint at ABQ continues today, and extends even into a courtroom where the defendant has a Constitutional right to a public trial.

What is the TSA trying to hide?

Stay tuned. We’ll be there when Phil Mocek returns to court in Albuquerque on Thursday morning.

[Update: We’ll be talking about the case with Adam Kokesh on KIVA 1550 AM in ABQ and online from 9-11 p.m. MT tonight.  Video archive of the show.]