Freedom To Travel – Page 46

Jun 18 2010

More reports of US violations of citizens’ right of return

“No one shall be arbitrarily deprived of the right to enter his own country.” (International Covenant on Civil and Political Rights, Article 12)

This week the Council on American-Islamic Relations held a news conference in Washington (statements, testimony, and links to adiditonal info) featuring first-hand accounts of US citizens who have been trapped overseas, unable to exercise their right to return to the USA, because the US refuses to give airlines “permission” to transport them to the USA.

We’ve reported previously on some of the same and similar incidents. The denial of transport, in the absence of judicial orders such as a no-fly injunction, violates airlines’ contractual and regulatory obligations as common carriers, and the extra-judicial government denial of transport and entry to the country fails to satisfy the substantive and procedural standards under the ICCPR for measures that implicate freedom of movement under Article 12, and violate US international obligations as a party to that treaty.

The US signed and ratified the ICCPR with the reservation that in the USA it would not be “self-efeectuating”, and it is not clear to what degree it has been effectuated by other US legislation. Since no-fly orders are given to airlines by the government, and the orders themselves are kept secret from the (would-be) traveler, it’s difficult for travelers to establish standing to challenge them against the government in US courts. Former Secretary of Homeland Security Chertoff’s publicly declared goal was never to allow judicial review of no-fly orders, and the Obama Administration has announced no change in that policy.

But US citizens who are trapped abroad, unable to return to the USA because airlines won’t transport them (presumably because the US government has told them not to, or hasn’t given them affirmative clearance to do so), aren’t limited to recourse through US courts. By depriving them of their right of return, while they are outside the USA, the US has given them the opportunity to shop the world for the jurisdiction form which to try to return, and to sue the airline (and, perhaps, the US government) for extra-judicial refusal of, and interference with, common-carrier transportation, and violation of Article 12 of the ICCPR. Those lawsuits won’t be heard in the USA, but in jurisdictions that ratified the ICCPR without reservations, and where the USA may not be able to invoke its “state secrets” doctrines to give impunity to airlines that chose to obey, rather than to challenge, illegal orders form the US government.

Jun 17 2010

European cooperation with US dataveillance

Presentation by Edward Hasbrouck of the Identity Project today at the conference on Computers, Freedom, and Privacy:

Jun 08 2010

“Freedom Flyer” trial in Albuquerque postponed

The trial of “Freedom Flyer” Phil Mocek, previously scheduled to begin June 14th in Albuquerque, NM,has been postponed due to the recusal of the judge to which the case was assigned, who apparently had a potential conflict of interest with one of the potential witnesses.

Mr. Mocek was arrested at a TSA checkpoint at the airport in Albuquerque, NM. The charges against him remain pending, but no new trial date has yet been set. We are continuing to follow the case, and will post an update in this blog and in our FAQ as soon as we have more information.

Jun 08 2010

Does the US recognize its citizens’ right to cross its borders?

US citizens generally assume that, whatever mistreatment is meted out to foreigners by US border guards and the DHS, we are entitled to enter and leave our own country without asking for, or receiving, permission from”our” government.

That should be a safe assumption, under both the First Amendment to the US Constitution (which guarantees our right “peaceably … to assemble”) and Article 12 of the International Covenant on Civil and Political Rights, which guarantees 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,” and pursuant to which strict standards have been adopted for what is “arbitrary.” All federal agencies have been directed by Executive Order 13107 to “maintain a current awareness of United States international human rights obligations that are relevant to their functions and … perform such functions so as to respect and implement those obligations fully.”

As the brave (some would say crazy) few people like Paul Karl Lukacs who actually try to exercise their rights have shown, it remains possible for US citizens to exercise their right to remain silent at the borders of our own country, although many US citizens have been subjected to interrogation, search, harassment, and sometimes detention when they try to return to the USA.

But can we be entirely prevented from coming or going? More and more, the frightening answer seems to be yes, in practice if not in law.

We first heard about a native-born US citizen being denied the ability to return to the country from overseas because the government wouldn’t allow any airline to transport them as what seemed to be an isolated incident in 2006. They chose not to sue, and after four months the ACLU negotiated “permission” for them to come home to California.

Now the ACLU reportedly has at least seven clients among US citizens abroad who have been unable to come home because the US government won’t let them board common carriers bound for the USA. One billionaire friend of Bill Clinton managed to get an apology for having been put on the no-fly list, but the others have no idea when or if they’ll be allowed to come home, whether it’s time to apply for refugee status or political asylum somewhere abroad — or whether, if they do make it home, they’ll ever again be given permission to leave the country.

[UPDATE: More on these and and even more outrageous similar incidents reported by the Council on American Islamic Relations.]

On the ground, the DHS is erecting steel barriers and gates down the middle of streets in the border town of Derby Line, Vermont, and arresting US citizens for walking across the street to and from Canada at intersections without checkpoints — even if they report themselves at the checkpoint a block further along their walking route.

All of these incidents involve people who have, and are wiling to show, US passports. Things get truly surreal for US citizens without papers.

We’ve heard from several US citizens who left the country without passports, can’t get new passports issued abroad for various reasons, but aren’t being allowed to come back to the USA without a passport. Under State Department regulations of questionable validity, a citizen can be denied issuance of a passport for various reasons, such as debts for court judgments, that don’t constitute grounds for deprivation of the right to enter or leave the country. And some of them may be difficult or impossible to resolve from outside the country. Catch 22.

Finally, there are those who would probably qualify for passports, but who are unwilling to apply for them for religious or other reasons. We’ve been working with a group of missionaries who describe themselves as Amish Mennonites (there are many varieties of Amish and Mennonite belief). Although they were born in the USA, they can’t, consistent with what seem to be their sincere religious beliefs, apply for or accept passports that identify them as citizens of the USA rather than as citizens of the Kingdom of God.

For several years, this group has been carrying out mission work in a rural area along the border of the Dominican Republic and Haiti. Despite seeming to have a clear-cut case under the Religious Freedom Restoration Act, they’ve had increasing difficulty each time they’ve gone back and forth between the island and USA. (Some of their stories of these and other incidents of life without papers are included here.)

One might think that “plain folk” and farmers might have particularly appropriate intermediate technology skills to offer to people in a poor and predominantly agricultural country like Haiti, and that governments would be doing what they could to facilitate the arrival of foreigners trying to bring aid to Haiti in the aftermath of the earthquake.

No such luck. For more than three months, the members of the Amish-Mennonite mission team have been trying to get permission to board a flight from the USA to the Dominican Republic.

After extensive negotiation, the TSA, CBP, and Department of State have agreed not to prevent their departure from the USA. American Airlines has sold them a ticket, and agreed to board them if they can show that the D.R. will admit them. The D.R. is willing to admit them, but only if they can provide sufficient evidence that they will be re-admitted to the USA when they return. There’s the rub: Despite clear treaty law and executive orders that require them to allow all US citizens to return to the country, neither the DHS nor the Department of State will provide any written confirmation that they will admit citizens without passports. So the missionaries are unable to leave the USA for want of proof that they’ll be allowed back in!

Jun 07 2010

Another Paris-Mexico flight barred from US airspace

Despite being a party to international aviation and human rights treaties guaranteeing free passage through international airspace, the US government claims the right to require prior government permission (granted or withheld in secret, without due process, judicial review, or publicly disclosed standards) not just for travel to or from the USA but for transit through US airspace — even on nonstop flights that aren’t scheduled to land in US territory.

Most such overflights of the US between other countries are to and from Canada, where US control and surveillance of overflights have provoked continuing controversy and opposition.

Of the handful of other airline flight paths between other countries that cross over US territory, the Paris-Mexico route continues to generate most of the — increasingly bizarre — incidents of US refusal of permission to overfly the US.

“Freedom Flyer” Phil Mocek to go on trial June 14th in Albuquerque

[UPDATE: The trial which was scheduled to begin June 14, 2010 has been postponed. Check our FAQ about the case or the court calendar for further updates as soon as they are available.]

We’ve written previously about the arrest of Phil Mocek at a TSA checkpoint at the airport in Albuquerque last November. Mr. Mocek had a valid ticket on Southwest Airlines (“You are now free to move about the country”), and was attempting to get to his flight. Like the “Freedom Riders” of the 1960s on interstate buses, Mr. Mocek sought to exercise his Federally and Constitutionally-guaranteed right to travel, but was arrested by local police for alleged violations of state and local laws and ordinances.

So far as we can tell, this is the first time someone in the USA has been arrested or charged with a crime for attempting to exercise their right to travel by air without showing ID or answering questions about themselves or their trip, or for photography or audio or video recording at a TSA checkpoint.

Mr. Mocek is now scheduled to go on trial starting June 14th on charges of violating four state and local ordinances carrying a total maximum sentence of 15 months in jail. (The charges could still be dropped, and the trial could be rescheduled. We’ll post an update in this blog and in our FAQ about the case if we learn of any change in the schedule.)

Is “SPOT” a reasonable basis for suspicion or surveillance?

Today the Government Accountability Office released a detailed report on the TSA’s “Screening Passengers by Observation Techniques” (SPOT) program, providing considerably more detail than the TSA itself has ever provided, confirming the lack of any evidence that the program has spotted any terrorists, and suggesting implicitly that the DHS has been keeping yet another set of illegal records about innocent travelers.

We’ve followed the SPOT program since its existence was first revealed in 2004, and we’ve been detained, interrogated, and subjected to more intrusive search ourselves after being picked out by SPOT “Behavior Detection Officers”. (Fancy language for, “They didn’t like our looks, so they harassed us and gave us a thorough shakedown.”)

The SPOT program is the TSA’s attempt to adopt Israeli-style passenger profiling based on appearance and behavior (isn’t that supposed to be un-American, or at least illegal?), and now has a budget of more than $200 million a year. As shown in the diagram above from the GAO report, more than 150,000 people have been subjected to more intrusive search or interrogation as a result of being fingered by BDOs as “suspicious” or allegedly fitting the (secret, of course, this being the TSA) SPOT appearance and behavior profile. In 14,000 cases, police were called and passengers detained for “investigation”, typically including a police demand for, and logging of, their ID.

The GAO report serves mainly to confirm the obvious: There is no scientific evidence that the SPOT program has identified any actual would-be terrorists, or provides any legitimate basis for suspicion of those it singles out: Read More →

May 20 2010

Statistics on UK travel surveillance and control

It’s tempting to think that ID and PNR-based travel control systems don’t “work” as anti-terrorist measures (they obviously work as surveillance measures and as general law enforcement dragnets, as do house-to-house searches) solely because of the incompetence of the TSA and DHS. Could they be more effective elsewhere, if better implemented? That seems to be the view of some sectors of center-right opinion in Europe, where the EU continues to consider a mandate for members states to set up their own “Passenger Analysis Units” to decide who to allow to fly, even while the the European Parliament has defined strict standards that they would have to meet.

Newly-reported data from the UK, however, suggests the UK PNR scheme — the most developed and extensive in the EU to date — has all the same problems as the US one. This suggests that the defcst are in the concept, not the details of its execution, and calls in question whether any PNR scheme is likely to likely to be able to meet the Europarl’s criteria for acceptability.

USA presses travel surveillance and control agenda at ICAO

The International Civil Aviation Organization (ICAO) has been holding another round of meetings this week at its headquarters in Montreal. As we predicted, the US delegation has been pressing its vision of an integrated and standardized global system of surveillance and control of air travel, in which government access would be built into airline reservation systems (think, “CALEA for CRSs and PNR data”, worldwide) and government permission would be a prerequisite to boarding any flight on what used to be considered a “common carrier” required to transport all comers.

It’s hard to know what’s going on at ICAO meetings if you aren’t there (think of other international bodies like the WTO and WIPO), and no privacy or civil liberties group was in attendance. But outsiders can get some sense what’s in ICAO’s pipeline from its own recently-published Vision 2020 10-year plan and from the working papers submitted by participants in last week’s sessions of the facilitation panel, including these:
Read More →

May 17 2010

Three Strikes?

Having been passed over for appointment to head the Drug Enforcement Administration, Deputy FBI Director John S. Pistole today got the booby prize as President Obama’s third-choice nominee to head the Transportation Security Administration.

For those who haven’t been keeping score, retired spymaster and Army General Robert A. Harding withdrew his name from nomination in response to questions about overbilling and cronyism in contracts between his security consulting firm and his former military comrades. Obama’s first choice, former Las Angeles airport cop Erroll Southers, withdrew earlier after apparently lying to Congress about his having used his police connections improperly to get derogatory information from supposedly restricted police files about his estranged wife’s lover.

We have the same questions for Mr. Pistole as we’ve had for the previous nominees for TSA administrator.

As of now, the TSA is still being run on auto-pilot by caretakers from the previous administration. Unfortunately, we don’t see anything in Mr. Pistole’s official biography as a career cop, or the President’s statement about his nomination (which mentions only a desire to “stengthen” screening at airports, and says nothing about strengthening civil liberties or human rights) to suggest any likelihood of improvement in TSA policies.

Papers, Please!

The Identity Project