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The Identity Project

Category Archives: Freedom To Travel

Jul 26 2012

How to stop Arizona’s SB1070 and similar state ID-check laws

There’s been much concern — and, we suspect, much confusion — about what to do about the portions of Arizona’s SB1070 immigration and ID-check law that weren’t struck down by the US Supreme Court in its decision last month in Arizona v. United States.

The portion of the law that remains in place (at least for now) after the Supreme Court decision is exactly the section that we focused on in our analysis of the law when it was first enacted:

For any lawful contact made by a law enforcement official or a law enforcement agency of this state or a law enforcement official or a law enforcement agency of a county, city, town or other political subdivision of this state where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person.

So far as we can tell, the Supreme Court majority (567 U. S. ____, slip opinion at pp. 19-24) reads this section of the law the same way we read it, in three crucial respects:

First, the Supreme Court opinion describes the Arizona law as imposing requirements on state officers to “attempt… to determine” certain facts, in certain circumstances. Nothing in the Supreme Court opinion suggests that SB10170 imposes any obligation on individuals to assist those officers in their “attempt .. to determine” that information, or to carry or provide evidence of, or to answer questions about, their identity or immigration status.

Second, the Supreme Court was unable to find in the text of the law any clear mandate for state officials to detain anyone who would not already be properly subject to detention, or to prolong anyone’s detention, merely in order to facilitate that “attempt … to determine” their immigration status.

Third, the Supreme Court explicltly left open the possibility that any prolongation of detention or delay of release from custody in order to facilitate an immigration check, or as a sanction for inability or unwillingness to supply evidence of identity or immigration status — even if the original detention or custody was lawful — might be unconstitutional. The Supreme Court did not find that this provision is Constitutional, only that it might be Constitutional — depending on how it is interpreted and applied by Arizona state officers and judges — and that it would be premature to find it unconstitutional just yet:

Some who support the challenge to §2(B) argue that, in practice, state officers will be required to delay the release of some detainees for no reason other than to verify their immigration status…. But §2(B) could be read to avoid these concerns. To take one example, a person might be stopped for jaywalking in Tucson and be unable to produce identification. The first sentence of §2(B) instructs officers to make a “reasonable” attempt to verify his immigration status with ICE if there is reasonable suspicion that his presence in the United States is unlawful. The state courts may conclude that, unless the person continues to be suspected of some crime for which he may be detained by state officers, it would not be reasonable to prolong the stop for the immigration inquiry.

To take another example, a person might be held pending release on a charge of driving under the influence of alcohol. As this goes beyond a mere stop, the arrestee (unlike the jaywalker) would appear to be subject to the categorical requirement in the second sentence of §2(B) that “[a]ny person who is arrested shall have the person’s immigration status determined before [he] is released.” State courts may read this as an instruction to initiate a status check every time someone is arrested, or in some subset of those cases, rather than as a command to hold the person until the check is complete no matter the circumstances. Even if the law is read as an instruction to complete a check while the person is in custody, moreover, it is not clear at this stage and on this record that the verification process would result in prolonged detention. However the law is interpreted, if §2(B) only requires state officers to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released, the provision likely would survive pre-emption — at least absent some showing that it has other consequences that are adverse to federal law and its objectives. There is no need in this case to address whether reasonable suspicion of illegal entry or another immigration crime would be a legitimate basis for prolonging a detention, or whether this too would be preempted by federal law….

There is a basic uncertainty about what the law means and how it will be enforced. At this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume §2(B) will be construed in a way that creates a conflict with federal law…. This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect. [slip opinion at pp. 22-24, emphasis added]

This close reading of the law and the Supreme Court opinion makes clear that the next step for opponents of the law is to test how, in practice, the state of Arizona will answer the questions asked by the Supreme Court: Will people in Arizona be detained, will their detentions be prolonged, or will their releases from custody be delayed (without, in each case, some other lawful basis) merely to check their immigration status?

If any of things happen to people in Arizona, the Supreme Court has explicitly left it open for them to bring new Constitutional challenges to those infringements of human rights. And if not, then people in Arizona retain the rights they have always had.

Read More →

Jul 18 2012

John Brennan, “Naked American Hero”, found not guily

John Brennan, who took off all his clothes while being detained by the TSA at the Portland [OR] International Airport (PDX) in protest of his continued detention and the TSA’s excessively intrusive “screening”, was found not guilty today of indecent exposure at the conclusion of a bench trial (during which Mr. Brennan testified, clothed, in his own defense) in Multnomah County Court. According to an Associated Press report on the trial:

A Multnomah County prosecutor said if Brennan’s actions are considered protected by the First Amendment, then anyone who is arrested while nude can also claim that their actions are a protest.

That leaves Mr. Brennan out of pocket for the legal expenses of defending his innocence. The “not guilty” verdict in the criminal case brought against Mr. Brennan leaves open the possibility, as already threatened by the TSA, of a civil action to fine Mr. Brennan for “interfering” with TSA screeners in the performance of their duties. On the other hand, the “not guilty” verdict also leaves open the possibility of a civil suit by Mr. Brennan against the checkpoint staff and police who violated his rights.

Jul 16 2012

Hasbrouck v. CBP dismissed. What have we learned?

We have stipulated to the dismissal of the remaining claims in Hasbrouck v. U.S. Customs and Border Protection, the Federal lawsuit in which the Identity Project had sought records of U.S. government surveillance and “targeting” of international travelers through the CBP “Automated Targeting System” (ATS).

The dismissal follows a ruling by U.S. District Court Judge Richard Seeborg in January of this year, dismissing some of our claims but ordering CBP to provide additional information about ATS records and to conduct additional searches to find more of the records we had requested or determine if they exist. (See our earlier analysis of the substance and significance of Judge Seeborg’s decision.)

Since January, as directed by Judge Seeborg, we have engaged in extensive negotiations with the government’s lawyers from CBP and the office of the local U.S. Attorney in San Francisco.

As a result of Judge Seeborg’s order:

  1. CBP provided us, in redacted form as shown on this supplemental Vaughn index, with several additional redacted documents which it had previously claimed didn’t exist or couldn’t be found, or which they had failed to search for despite our request for and entitlement to those records. These newly disclosed records include additional records related to Mr. Hasbrouck’s travels, in which his name was misspelled. The most recently-released of these are from 1997, and others released to Mr. Hasbrouck earlier in the case go back to 1992, long before any public disclosure of the existence of ATS. CBP had claimed that it was unlikely that a name in a Passenger Name Record (PNR) could be misspelled, but these new disclosures show that it can happen, that CBP is capable of “wildcard” searches for variant spellings, and that such a search is necessary for it to be reasonably likely to identify all records responsive to a request for PNR or other ATS data pertaining to an individual. All of these new records also cast doubt on CBP’s claims as to the completeness of its past responses. Prior CBP responses to requests for such records were likely incomplete, and should be renewed with a specific request to include possible misspellings in the search.
  2. After previously claiming that there were no records of the processing of Mr. Hasbrouck’s original Privacy Act requests and appeals, CBP provided us with “correspondence tracking sheets” showing that these Privacy Act requests (1) were logged and tracked solely as FOIA requests, not Privacy Act requests, (2) were logged as “closed” even while appeals were pending, and (3) do not mention some of the appeals, even when those appeals were received and signed for by CBP. Assuming that CBP is telling the truth, and these are the only records of Mr. Hasbrouck’s requests and appeals, they show that no record is kept of Privacy Act requests and that records of FOIA requests and appeals are incomplete and inaccurate. As a result, CBP’s records and reports cannot be relied on as accurate statements of how many such requests have been received; whether they have been granted, denied, or ignored; how long it has taken to process them; how many of them remain pending and unanswered; whether they have been appealed; or what, if any, action has been taken on those appeals.
  3. CBP provided two additional declarations purporting to explain why no other records responsive to our requests exist or could be found.  In part, these declarations are simply not credible, and would appear to be false and probably perjured. For example, CBP’s Shari Suzuki claims that it is impossible for CBP to search for PNR or other ATS data associated with a particular phone number without also supplying a name as part of the query. Although the software specifications and user guides were withheld from us pursuant to Judge Seeborg’s ruling that they are exempt  from disclosure, it’s unlikely that CBP would be using software that doesn’t permit that sort of query. And Assistant Secretary of Homeland Security testified to Congress on October 5, 2011, about exactly this sort of search: “Early in this investigation, the Federal Bureau of Investigation (FBI) learned of Shahzad’s cell phone number, but had little additional information…. [T]he FBI asked DHS if it had encountered any individual who reported this phone number during border crossings. DHS searched its PNR database for the phone number, identified Shahzad, and learned other information he had provided to DHS.”  We are confident that, if CBP were searching for records as part of an investigation rather than in response to a FOIA request, it could have, and would have, searched for all records containing phone numbers associated with Mr. Hasbrouck, regardless of whether his name appeared in those PNRs. Unfortunately, the extreme “deference” given by the Federal courts to the credibility of agency declarations in FOIA cases, and our lack of access to the software specifications, makes it almost impossible to challenge even such obviously incredible claims about why the records we have requested can’t be found. But let’s be clear: CBP lied about its data mining capabilities rather than actually search for records linking Mr. Hasbrouck to other individuals through phone numbers or other identifiers. What were they trying to hide? Presumably, they were trying to avoid calling attention to the primary function of ATS as a suspicion-generating and guilt-by-association system, designed and used primarily for “social network analysis”..
  4. After first claiming that it processed Mr. Hasbrouck’s requests and appeals only under FOIA and not the Privacy Act, CBP now claims that these requests were made only under the Privacy Act and not FOIA, on the basis of false declarations about what Mr. Hasbrouck said in telephone calls inquiring about the status of his requests and appeals. In light of the “deference” given to the agency declarations in which these false claims are made, it will be easier to make new requests under FOIA for this information than to try to disprove the false claims in the declarations that Mr. Hasbrouck had agreed to abandon or withdraw his FOIA requests. But here again, CBP officials were willing to lie in sworn  declarations made to Federal courts, in order to avoid or delay judicial review of their withholding of information.
  5. During our negotiations, CBP promulgated a new System Of Records Notice (SORN) for ATS, a Notice of Proposed Rulemaking (NPRM) to exempt even more ATS records from the Privacy Act, and an updated and expanded Privacy Impact Assessment for ATS. CBP would no doubt say that some of these documents provide “additional transparency” about ATS. But any transparency is offset, of course, by the broadening of exemptions. And under the interpretation of the Privacy Act adopted by Judge Seeborg’s ruling in our case, additional Privacy Act exemptions could be promulgated at any time in the future, and applied even to requests that had already been made. Nobody can rely on any “rights” under the Privacy Act that could be retroactively revoked at any time. In addition, the new notices fail to give any additional detail about the data-mining or search-and-retrieval capabilities of the software (which Judge Seeborg ruled that CBP does not have to disclose, notwithstanding the specific requirement of the Privacy Act law that a SORN include the “practices of the agency regarding … retrievability” of records) or the algorithms used for processing data and making “targeting” decisions. (In its comments on the new SORN, EPIC correctly points out that the use of secret algorithms makes it impossible for airlines or other travel companies subject to European Union jurisdiction, but which provide PNR or other data to CBP for ATS, to fulfill their duty under EU law to inform data subjects how their data is processed — a point we’ve made in complaints against airlines to European data protection authorities.) Perhaps most importantly, what these new filings provide is more transparency about the unprecedented scale, scope, and secrecy of ATS as a system of suspicionless surveillance and control of all international travelers and their associates.

Individuals and governments abroad should also take due note of the U.S. government’s claims in this case, and judge their collaboration with ATS accordingly. Individuals — even U.S. citizens — have no right under U.S law to see what ATS records are being kept about them, and no right to know how or according to what algorithms data about themselves is mined, processed, or otherwise used.  No records are kept of requests for access to records, and no logs are kept of who retrieves records.

Clearly, the Automated Targeting System is exactly what the Privacy Act was intended to prohibit: a system of persistent secret government dossiers about the legal activities of people who are not suspected of any crime. The reason for the enactment of the Privacy Act was the recognition that such surveillance systems, regardless of their purposes or the benign intentions of their creators, are inherently likely to be be misused.

At the end of the day, the (unsurprising) lesson of Hasbrouck v. CBP is that U.S. courts continue to place the “airport exception to the First Amendment” above our right to travel and our right as citizens, presumed innocent until guilty, to be free from dragnet surveillance.

If the courts won’t upheld the intent of the Privacy Act by ruling against the maintenance of systems such as ATS, it’s up to the public to say, “No”, and to demand that Congress enact legislation explicitly mandating that ATS be shut down and all ATS records about innocent individuals be destroyed.

We are not surprised by the outcome of this lawsuit, which revealed more than we had expected about the contents of ATS records and the the nature and functioning of the ATS system. We are pleased and proud of whatever role this lawsuit may have played in exposing the lack of respect by the executive and judicial branches of the U.S. government for our fundamental rights.

We are grateful to attorneys David Greene, Lowell Chow, Jim Wheaton, and Geoff King; to the staff and interns of the First Amendment Project (our parent organization) and Bryan Cave; and to John Gilmore and the other supporters who made possible this challenge to the secrecy of DHS surveillance of international travelers.

Jul 06 2012

US continues to banish citizens by no-fly orders

The ongoing saga of attempted banishment of US citizens by their own government, through (secret, standardless, extra-judicial) administrative no-fly orders issued to airlines while those citizens are abroad, continues with two recent cases of San Diego college and university students.

In June, Keven Iraniha was denied boarding for a flight on which he held a ticket from Costa Rica to the USA, apparently (although of course US authorities would neither confirm nor deny this) because the US government had, for some unknown reason, put his name on a no-fly list.

Mr. Iraniha, a California native who was born and raised in the US and who had received his undergraduate degree from San Diego State University, was attempting to return with his family from his graduation  from a masters program in International Law and the Settlement of Disputes at the University of Peace established by international treaty under United Nations auspices in San Jose, Costa Rica.

As with other US citizens recently made the subject of no-fly orders to airlines, such as Yonas Fikre, the US government’s goal may have been primarily to pressure Mr. Iraniha to become an FBI informer, as a precondition to giving him “permission” to return to his country. After being denied passage home, he was questioned by the FBI about his recent travels including his visits to Iran, India, and Egypt.

Is international travel now considered inherently suspicious by the US government?

Unable to find out why all airlines serving the US had been forbidden to transport him home, Mr. Iraniha flew from Costa Rica to Mexico, and re-entered the US by land from Tijuana to San Ysidro (San Diego).

Ali Ahmed, a naturalized US citizen and San Diego City College student currently stranded in Bahrain after the US ordered airlines not to fly him home to the US, has not been so “lucky”.

Mr. Ahmed arrived in the US from Somalia with his family as refugees when he was seven years old. He was on his way from making the Hajj (pilgrimage to Mecca) to Kenya for a family reunion and arranged wedding there when he was denied entry to Kenya. He doesn’t know why, but it seems reasonable to suspect that Kenyan authorities acted at the behest of the US.

After being denied entry to Kenya, Mr. Ahmed was returned to Bahrain, where his connecting flight to Kenya had originated. But he was denied boarding on two flights from Bahrain to the US, even after being told by staff at the US Embassy to Bahrain that he should buy a new ticket and would be allowed to fly home.

Mr. Ahmed had never planned to do anything more than change planes in Bahrain, and has no citizenship or right of residency there. We suppose that as a US citizen he could, if necessary, take refuge in the US Embassy if Bahrain doesn’t let him stay and he can’t get to anywhere else. But in the circumstances, that might amount to self-imprisonment rather than sanctuary.

It would be difficult and extremely expensive fro Mr. Ahmed to return from Bahrain to the US while airlines are prohibited from transporting him into the US or through US airspace. Canada prevents people on the US no-fly list from flying to or from Canada. Almost all flights between Mexico and Europe or Asia pass through US airspace and have repeatedly been subjected to US no-fly orders.

For Mr. Ahmed to get home in spite of the US no-fly order would require him — if the other countries along the way allow him do so — to fly from Bahrain via Europe or Dubai to somewhere far enough south in Latin America (such as Brazil or Argentina) that the flight doesn’t cross over Florida, then on to Mexico, and then re-enter the US by land from Mexico.

For now, Mr. Ahmed is continuing to try to negotiate assurances from US officials that the US will withdraw its no-fly orders to airlines and allow him to fly home more directly to the US.

It’s past time for the US to recognize that restrictions like these on the rights of US citizens to  leave or return to the country of their citizenship, or to travel within it, are violations of their human rights.

Jul 05 2012

Does nudity “interfere” with the TSA’s groping?

As the TSA’s “screening” has become increasing invasive — searches, x-ray and microwave “whole body imaging”, genital groping, etc. — more and more people have suggested that, since we are required to submit to a virtual strip-search and/or groping of our genitals in order to obtain TSA permission to travel, we might as well show up at the TSA checkpoint already naked.

But what happens if a would-be traveler takes off their clothes at the checkpoint, so the TSA staff can see a little more clearly whether they are carrying any weapons or explosives?

Later this month John Brennan goes on trial before a county judge in Portland, Oregon, charged with violating Portland City Code 14A.40.030 (“indecent exposure”) for doing just that. Mr. Brennan has also been threatened by the TSA with the possibility of an administrative fine of up to $10,000 for violating Federal regulations (49 CFR §1540.109) by “interfering” with TSA screeners in the performance of their duties.

As we understand it from Mr. Brennan’s blog and other sources, here’s what happened:

On April 17, 2012, Mr. Brennan showed up — clothed — at Portland International Airport (PDX) for a flight to San Jose, CA.  He went through a metal detector without setting off any alarms. Since he declined to “consent” to a virtual strip-search, TSA staff also gave him an “enhanced pat-down” including the usual groping through his clothes, still finding no sign of anything contraband, dangerous, or threatening. But the TSA continued to detain Mr. Brennan at the checkpoint.

The TSA didn’t give Mr. Brennan any clear explanation of why he was still being detained, or what would happen next, but it seemed like their super-duper detectors had indicated that a chemical swab of his clothing or belongings had shown some indication of possible explosives.

At this point Mr. Brennan did the only thing he could have done to provide additional evidence to the checkpoint staff that he wasn’t hiding any weapons or explosives under his clothes, and to calmly and quietly protest the TSA’s treatment of him in the manner least likely to obstruct any further, more intrusive search they might want to conduct of his person or clothing: He took off his clothes. All of them. And when the TSA still wouldn’t let him go, but instead called the local police and told him to put his clothes back on, he peacefully declined to do so. At that point, he was arrested by Port of Portland police.

Mr. Brennan was originally charged with a misdemeanor violation of state law, ORS 163.465 (“public indecency”), but that charge — which would have entitled him to a jury trial, and would have required the prosecution to prove “the intent of arousing … sexual desire” — was dropped the next day.

That leaves the Portland “indecent exposure” ordinance and the TSA’s regulations against interfering with “screeners” in the performance of their duties.

Read More →

Jun 10 2012

Attorney General admits there’s a right to travel — but claims ignorance of violations

As picked up on by Josh Gerstein of Politico.com, Attorney General Eric Holder was questioned this week during an appearance before Congress (see this video beginning at 1:23:47) about whether people who want to enter Federal office buildings or courthouses, petition the government for redress of their grievances, or travel to Washington by plane to do so are, or can lawfully be, required to show government-issued photo ID credentials.

Holder did admit that travel is a Constitutional right: “Yup. The Supreme Court has said that the right to travel has a Constitutional dimension.”

But he claimed not to be aware that government-issued ID credentials are required of visitors to the Justice Department building that houses his own office, or — as the 9th Circuit Court of Appeals upheld in 2007 in Foti v. McHugh — from those who seek to enter Federal courthouses (even people who are themselves parties to cases and representing themselves pro se).

Asked about what, if anything, his department has done to investigate discriminatory application of such ID requirements for would-be petitioners for redress of grievances, Holder repeatedly changed the subject to ID requirements for voters, as if the ability to change the government through voting made it unnecessary to afford any means of redress of grievances between elections.

We’re still waiting for any response to our complaints of violations of the right to travel by Federal agencies — complaints that it should be Holder’s responsibility to investigate.

One of the most problematic of Federal ID requirements is the requirement to show ID to get into the Federal buildings that house most State Department passport offices. Because State Department regulations (22 C.F.R. § 51.28) expressly entitle passport applicants to establish their identity through an identifying witness, without any prerequisite ID documents or credentials, getting a passport is often easier for citizens without documents than getting a drivers license or state ID, and can serve as the first step in “bootstrapping” state ID or other documents.

Unfortunately, many Post Offices and other passport acceptance offices are unfamiliar with the “identifying witness” option, which isn’t mentioned in most State Department passport application references. The only places you can count on the witness affidavit form being available and accepted are State Department passport offices, almost all of which are located in buildings that can no longer be entered without first showing government -issued ID credentials.

Catch 22.

Jun 08 2012

Should the IRS control international travel by US citizens?

This week the US House of Representatives has been debating whether to accept a proposal, introduced by Sen. Barbara Boxer (D-CA) and already approved by the Senate, which would give the IRS extra-judicial administrative authority and mandate to prevent a US passport being issued or renewed, and to have any existing US passport revoked, for anyone alleged by the IRS to owe more than US$50,000 in “delinquent” taxes.

Since 2009, Federal law and regulations have forbidden US citizens from entering or leaving the US, even by land, without a passport. So if the proposal now in Congress is approved by the House and signed by the President, the mere allegation by the IRS of a delinquent tax debt will effectively constitute confinement of the accused within the borders of the US (if they are in the US at the time), or indefinite banishment from the US (if they are abroad), by IRS administrative fiat.

The State Department would have standardless administrative “discretion” to issue a passport to an accused tax delinquent “in emergency circumstances or for humanitarian reasons”, but would never be required to do so. And the State Department could use the offer of such a discretionary waiver, or the threat not to grant such a waiver, as a carrot and/or stick to induce the accused citizen to, under duress, waive their right to remain silent or other rights, pay a disputed tax bill (as a de facto “exit tax” of the sort the US used to protest when it was imposed by a Communist government on its citizens), “cooperate” with US spying, or do whatever else the government wanted.

What’s missing from this proposal, as from the rest of the State Department’s passport rules and procedures, is any recognition that travel is a right, not a privilege that can be granted or denied at the whim of the government. Under the First Amendment and international law, US citizens have a near-absolute right to leave the US (or any other country) and to return to the US.

The current proposal to ban international travel to or from the US by US citizens accused of “tax delinquency” is included in S. 1813, a generally-unrelated highway funding bill. S. 1813, including the provisions to deny passports to alleged tax delinquents, was approved by the Senate in March.

The parallel House bill, H.R. 4348, doesn’t include any provisions for passport denial, and differs in many other respects from the Senate bill. President Obama has told Congress that for other reasons he would probably veto the House bill, but hasn’t yet made any official statement on the Senate bill or the passport denial proposal.

This week the House has been debating instructions to its members of a conference committee charged with negotiating a compromise between the House and Senate bills.

Tell your Representatives to reject the passport denial and revocation provisions of the Senate bill, or any compromise bill that includes them. Alleged “tax delinquency” is not sufficient or permissible grounds for anyone to be confined within the borders of the US, or banished from their country.

May 10 2012

Is the problem with the TSA the leader? Or the concept?

Rep. Paul Broun, MD, a Georgia Republican member of the House Committee on Homeland Security, has called for the resignation of the Administrator of  the TSA, John Pistole.

We agree with Rep. Broun that “The time has come for serious action to be taken” with respect to the TSA, that “drastic change” is required, and that, “The time for that change is now.” And we agree that those at the top as well as the bottom of the bureaucratic hierarchy need to be held accountable.

Most of all, we’re pleased to see Rep. Broun put civil liberties first in his letter to TSA Administrator Pistole requesting his immediate resignation:

Americans can no longer tolerate the flagrant violations of their civil rights which are occurring at airports nationwide in the name of “security.”

Pistole’s resignation, now or later, would accomplish nothing unless Senators ask more serious questions (we have a few suggestions) before confirming a new TSA Administrator.

As long as the TSA is allowed to wield power over the people (and our exercise of our right to travel)) through secret, extra-judicial administrative fiat, airports and other transportation facilities will remain the domestic counterpart of Guantanamo: law-free zones in which even the most friendly-faced and “respectful” leadership can do little to change the essential illegality of the agency’s operations.

More is required, we think, than another turn of the revolving door on the office of the TSA Administrator.  If the TSA is retained, it needs to be brought within the rule of law.  We have some specific suggestions for interim reform of the TSA’s policies and practices, not just its personalities. But fundamentally, we agree with participants in the White House’s own public poll, whose first choice of requested actions for the President was to abolish the TSA entirely.

May 08 2012

US retaliates against tortured “no-fly” exile with trumped-up criminal charges

For two years, FBI agents tried to recruit Yonas Fikre — a US citizen who came to the US with his family as refugees when he was 12 years old — to infiltrate and inform on members of the congregation of a mosque he attended in Portland, Oregon, as part of an FBI entrapment “sting”.

When Fikre declined to become an FBI snitch or “agent provacateur”, the FBI had him put on the US “no-fly” list while he was overseas, and told him he would only be taken off the list so he could return to the US if he “cooperated” with their investigation of his fellow worshipers. Fikre again said, “No.”

Then the US government tightened the screws on Fikre, more or less literally, by having its “friends” in the dictatorial monarchist government of the United Arab Emirates arrest Fikre, who was in the UAE on business, torture him, and again tell him that the only escape from his predicament was to cooperate with the FBI.  Eeven under torture, Fikre stkill said, “No.”

Eventually Fikre’s torturers in the UAE gave up, released him from prison, and kicked him out of their country.  We can only assume that they decided he was innocent, or at least knew nothing incriminating about anyone to reveal, and wasn’t going to talk to the FBI no matter what they did.

Unable to return to the US because he was still on the “no-fly” list, Fikre then went to Sweden, where he has relatives (refugees who went to Sweden when his immediate family went to the US).

Throughout all this, Fikre was never charged with any crime in any country, as we presume would have happened if the FBI had evidence of any crime to use as leverage in their recruiting of Fikre as an informer.

Now Fikre has been indicted in the US, less than three weeks after he went public with his story of exile by, and torture at the behest of, the government of his own country, and announced that he has sought asylum in Sweden in order to remain there, since he can’t come back to the US.

“Frankly, I think it’s retaliation and retribution,”  one of Fikre’s US attorneys is quoted as saying. Another of his lawyers calls the charges retaliation and “specious”. From everything we’ve seen about the case, we agree.

Fikre is charged with the pettiest of purely procedural violations of Federal law. Allegedly, when he transferred money from the US to Dubai to fund a business he was starting there, he had the money sent in smaller increments rather than all at once, in order to keep each of the amounts below the $10,000 threshold above which he would had to report them to the US government.

For having “structured” his legal personal business so as to avoid having to inform on himself to the Feds who he knew already wanted him to inform on his associates, Fikre has now been indicted for the Federal crime of “structuring”.

Fikre’s brother and another alleged associate, but not Fikre, were also indicted for alleged violations of tax laws.

Fikre’s business was legal. Fikre paid his taxes. The money transfers were themselves legal, and each of them was small enough that Fikre wasn’t required to report them individually. If Fikre had filed an aggregate report on the total of the transfers, everything he did would have been legal.

Fikre had good reasons to fear additional interrogation or worse retaliation if he told the Feds any more about his affairs. If he was “structuring” his finances to avoid self-surveillance requirements, he was also structuring them to try (unsuccessfully, it turns out) to avoid exposing himself to further persecution by the US government. Should this be a crime?

It’s hard to avoid the conclusion that Fikre’s real “crime” is exposing US torture and exile of its own citizens, and embarrassing the US by seeking asylum abroad. Not that he had much choice about seeking asylum somewhere, since he couldn’t come back to the US, or live and work anywhere else indefinitely as a tourist or temporary visitor.

It remains to be seen whether the US will seek to have Fikre arrested and extradited from Sweden, or will merely hold the threat of criminal prosecution over him for life (the clock stops on the statute of limitations while you are out of the country) if he ever manages to return to the US or visits another country sufficiently “friendly” to the US government to arrest him.

Shame on  the US, and best wishes to Mr. Fikre for success in his application for asylum in Sweden.

Apr 27 2012

US citizen exiled to torture by “no-fly” list seeks asylum in Sweden

A US citizen who was imprisoned and tortured for three months by the US government’s “allies” in Abu Dhabi and Dubai, and who can’t come home even after being released from the UAE because the US government has put him on its “no-fly” list and forbidden any airline from transporting him to the US, has requested political asylum in Sweden.

Yonas Fikre came to the US with his family in 1991, when he was 12 years old, as a refugee from Eritrea, and later was naturalized as a US citizen.

In April 2010, while Fikre was abroad on business and visiting family, FBI agents contacted him to try to recruit him as an informer and agent provacateur in an FBI entrapment “sting” directed at members of a mosque Fikri had attended in Portland, Oregon. Fikre declined to become a snitch and infiltrator for the Feds, but the FBI followed up with implicitly threatening email messages that, “[T]he choice is yours to make. The time to help yourself is now.”

In June 2011, he was arrested in Abu Dhabi by plainclothes UAE police, who held him for three months in a secret prison in Dubai while torturing him, interrogating him about members of the Portland mosque, and telling him that he had been put on the US no-fly list and that he would never be released from their custody and torture or allowed to return to the US unless he “cooperated” with the FBI.

Eventually, he was released from detention and allowed to leave the UAE in September 2011 , but told the US still wouldn’t let him go home.  He’s been living in Sweden, where he has other relatives, since then, and has now applied for political asylum on the grounds that he has been effectively exiled from the US by being placed on the US no-fly list (in violation of his human rights under Article 12 of the ICCPR, to which the US and Sweden are both parties) and that his detention and torture in the UAE, presumably at the behest of the US government and/or its agents, gives him reasonable grounds to fear further mistreatment even if he were allowed to return to the US.

This isn’t the first time that the US government has used the no-fly list against US citizens as an as an instrument of exile. Here are just a few of the incidents, among others, that have previously made the news:

It isn’t just US citizens who have been denied their right to return home by the US no-fly list. As recently noted by the 9th Circuit Court of Appeals, the US no-fly list is used by US-flag airlines on flights elsewhere in the world, and is shared with at least 22 foreign governments. Some of the foreigners prevented from returning home, or from traveling to countries other than the US, as  a result of US no-fly orders or “no-board recommendations” from US “advisors” stationed at foreign airports, include:

  • Dawood Hepplewhite: UK citizen stranded in Canada and denied boarding on a flight home to the UK in February 2011.
  • Mohammed Khan: Canadian citizen stranded in Germany and denied boarding on a flight home to Canada in March 2011.
  • Moazzam Begg: UK citizen and former Guantanamo prisoner never charged with any crime in the US, UK, or any other country; denied boarding on a flight to Canada for public speaking engagements in May 2011.