Papers, Please!

The Identity Project

Category Archives: Papers, Please

Mar 13 2014

Public questioning of US government on human rights

Today and tomorrow in Geneva (early Thursday and  Friday morning in the USA), a delegation from the US government will be questioned publicly by members of the UN Human Rights Committee about US implementation of the International Covenant on Civil and Political Rights (ICCPR).

Here’s the schedule of the webcast public questioning:

  • Thursday, March 13, 15:00-18:30 Geneva time (7 am-10:30 am PDT, 10 am-1:30 pm EDT)
  • Friday, March 14, 10:00-13:00 Geneva time (2 am-5 am PDT, 5 am-8 am EDT)
  • tentative additional session Friday, March 14, 14:00-17:00 Geneva time (6 am-9 am PDT, 9 am-noon EDT)

This is neither the first nor the last step, but a critical step, in the review conducted by the Human Rights Committee every five years (as with each other country that is a party to the treaty) of US implementation of this international human rights treaty.

We’ll have more details after the sessions, but here are some quick links for those tuning in to the webcast:

Updates:

Feb 25 2014

DHS uses email intercepts to question US citizen about her sex life

At first blush, a lawsuit filed last week by the ACLU on behalf of a sociology professor at Indiana University wrongly detained by U.S. Customs and Border Protection seems to be about whether CBP is exceeding the limitations on its police powers, and detaining US citizens for purposes unrelated to customs and borders.

That’s bad, but unsurprising in light of the history of abuse of limited administrative search powers as a pretext for unrelated police purposes by CBP and other DHS components, notably the TSA.

What’s more unusual, however, is the complaint that the DHS is using email messages, presumably obtained from the NSA (unless the DHS has some email interception program of its own) as the basis for detention and interrogation of US citizens who aren’t trying to travel or ship any goods across US borders.

And what was the subject of this warrantless custodial interrogation of a non-traveling US citizen by armed “Customs and Border Protection” officers, based on email intercepts? Her sex life.

No, we’re not making this up.

Professor Christine Von Der Haar of Indiana University tells the story in her complaint, in an interview with the Bloomington Herald-Times in 2012 at the time of the bizarre CBP doings that led to her lawsuit, and in a video interview with the Indianapolis Star last week when the lawsuit was filed.

A few years ago, Dr. Von Der Haar, a US citizen, reconnected online with Dimitris Papatheodoropoulos, a Greek freelance transport and logistics manager and consultant who she had been friends with as a teenager, 40 years earlier, at an international school they both attended in Switzerland.  After a year’s exchange of email, some of which Dr. Von Der Haar says was “flirtatious and romantic in nature”, Mr. Papatheodoropoulos arranged for a visit to Dr. Von Der Haar in Bloomington during her summer break from university teaching.

Von Der Haar believes her friend is a victim of a cultural misunderstanding. His emails signed off “I love you. I miss you. I kiss you.” Marriage, though, was beyond the pale for two adults in their mid-50s who hadn’t seen each other for decades, they say.

Sure, his language is flowery, but Von Der Haar laughs about it, slightly embarrassed: “We’re silly. He’s a Greek man. What can I say?.”

Mr. Papatheodoropoulos obtained a 10-year, multiple entry B1/B2 business and tourism visa to the US, allowing him to consult with business associates and negotiate contracts as well as visit friends. Since he works as a freelancer, and wasn’t sure how long he would be staying in the US, he shipped a computer and some other electronic equipment by air freight, but removed the hard drive with his data and carried it with him.

On arrival, Mr. Papatheodoropoulos cleared US customs and immigration and was admitted to the US without incident. But when Dr. Von Der Haar took him back to the Indianapolis airport a few days later to pick up the items he had shipped by air freight, they were referred to the CBP office at the airport.

According to Dr. Von Der Haar’s complaint, armed CBP officers detained both her and Mr. Papatheodoropoulos, took them into separate rooms, and stood blocking the exit door while they interrogated Dr. Von Der Haar about, “the nature of her relationship with Mr. Papatheodoropoulos … the contents of email messages that Dr. Von Der Haar and Mr. Papatheodoropoulos had sent each other … [and] if she and Mr. Papatheodoropoulos were having sexual relations.”

Given that Mr. Papatheodoropoulos had retained his hard drive that contained the emails, the only way that the Customs and Border Protection Agents could have reviewed the emails is for someone to have surreptitiously monitored the communications between Dr. Von Der Haar and Mr. Papatheodoropoulos and reported those communications to the agents questioning her. Defendant Lieba admitted that employees of the United States had read email communications between Dr. Von Der Haar and Mr. Papatheodoropoulos.

Dr. Von Der Haar was taken into the back room of the CBP office for questioning twice, for a total of about half an hour, while Mr. Papatheodoropoulos was questioned for “approximately 4 1/2 – 5 hours” before he emerged and was allowed to leave. His Greek passport (property of the Greek government) was confiscated without warrant, leaving him unable to leave the US even had he decided to cut his visit short, and he was “served with notice that a proceeding was initiated against him for removal from the United States” on the basis that:

You obtained your B1/B2 visa by misrepresenting your intentions to come to the United States to wit; It is your intention to immigrate to the United States, you abandoned your foreign residence, you intend to overstay your admission to the United States.

“None of this was true” according to the complaint. Mr. Papatheodoropoulos requested an expedited trial on these allegations, but “the removal action did not proceed. His passport was returned to him and he left the United States at the end of August of 2012 and has not returned.”

What are we to make of this episode?

First, CBP officers grossly exceeded their jurisdiction. Dr. Dr. Von Der Haar’s US citizenship was never questioned; she wasn’t trying to enter, leave, or ship and goods in or out of the country; and she was never accused of any crime.  In general, immigration (as distinct from customs) offenses are handled by Immigration and Customs Enforcement (ICE) and the Border Patrol, not CBP. We’re curious what basis CBP will claim for its officers’ authority to detain and interrogate Dr. Dr. Von Der Haar or obtain her email.

Second, unless this incident has exposed some previously unsuspected DHS email interception program, it seems likely that CBP obtained copies of email between Dr. Dr. Von Der Haar and Mr. Papatheodoropoulos from the NSA.  We know that the NSA is copying and archiving as much email as it can get its hands on.  But was this email traffic flagged by the NSA as being of interest, and brought to the attention of the DHS? Or did the DHS ask the NSA to retrieve these email messages from the NSA archives, and provide them to the CBP? When, how, and on what basis, does the NSA “share” its email intercepts with the DHS?

We look forward to learning more. We won’t be surprised, though, if the government claims that intercepting email messages on grounds of “national security” and then handing them over to another government department in order to detain and interrogate an innocent US citizen about her sex life is a “state secret”.

Feb 18 2014

Blacklists and controls on the movement of goods and money

We’ve focused mostly on the “no-fly” list and other government blacklists and “watchlists” restricting the movement of people. But the latest administrative injustice involving an innocent British philosopher reminds us that government blacklists also restrict the movement of information, goods, and money — sometimes with serious negative effects on innocent people’s lives.

How the US Treasury imposes sanctions on me and every other “Stephen Law” on the planet – my letter to OFAC

My name is “Stephen Law“. The name “Stephen Law” appear on OFAC’s “specially designated nationals” list….

I have discovered that, as a result of this listing, US Customs block shipments of goods to me here in the UK. Also when people try to wire me money from abroad (not just from the US, but from anywhere), for e.g. occasional travel expenses for academic conference attendance, the payment is interrupted and various checks are made before the funds are released. This became so bad during one period (a series of payments every single one of which triggered a block) that I had to switch to a different bank account. At no point was I told why this was happening (i.e. that you, OFAC, are responsible). The banks concerned believe they must keep this information from me (I was told this by my bank branch). Hence it took me many months to figure out what the source of the problem was: OFAC/US Treasury.

It appears any “Stephen Law” anywhere in the world will suffer this same treatment, as indeed will anyone who merely happens to have the same name or alias as one of your “specially designated nationals”. This has proved frustrating, time-consuming and also costly to me personally. E.g. I have  paid US$77 postage for goods it turns out I can never receive because they are returned by US customs to the US vendor because my name is listed. As a result of the OFAC listing, I cannot now order goods from – or receive gifts from friends and relatives in – the United States….

OFAC-caused delays to payments to me can run into weeks. On one occasion I ran up overdraft charges as a result of not receiving funds blocked by OFAC….

How could this happen?

Read More →

Feb 14 2014

Lessons from the first “no-fly” trial

Information about what happened in Ibrahim v. DHS – the first “no-fly” case to make it to trial — has trickled out gradually, making it hard to get a clear picture of what has happened.

The court was cleared at least ten times during the week-long trial for testimony, introduction of evidence, and legal arguments that the government claimed had to be kept secret.  Many of the documents, exhibits, declarations, legal briefs, and even the judge’s opinion remain sealed, in whole or in part.  Key information has to be pieced together by reading between the redactions, or from passing mentions in open court, the meaning of which only becomes clear in light of other fragmentary revelations.

Most mainstream media didn’t cover the trial, covered it only from the written record, or attended only small portions of the proceedings.  We attended and reported on as much of the trial as was open to the public, but at times, we were the only reporter or member of the public in the courtroom.

The government still has until March 14th to decide whether to appeal, and the remaining sealed portions of the judge’s opinion aren’t scheduled to be released until April 15th. Key portions of Judge Alsup’s findings including what happened to Dr. Ibrahim’s US-citizen daughter are still secret. But in the meantime, what are our key takeaways from this trial?

(1) Congress needs to close the loopholes in the Privacy Act, which was enacted in 1974 to prevent exactly this sort of injustice, and would have done so but for its exemptions, exceptions, and lack of enforcement.

The purpose of the Privacy Act was to prohibit the government from using secret files as the basis for decisions about individuals, without allowing the subjects of those files to inspect and correct them. But agencies are allowed to exempt entire systems of records from these requirements. The DHS and the FBI (keeper of the Terrorist Screening Database which includes the “no-fly” list) have exempted their watchlists and blacklists and the allegedly derogatory information on which watchlisting and blacklisting decisions are based. In addition, although privacy is a human right protected by international treaty, the Privacy Act only protects U.S. citizens and residents. Other foreigners have no rights under this law, even when the U.S. government is using secret files to make decisions about their exercise of their rights.

(2) The watchlisting form and process incorporates presumptions in favor of surveillance and restrictions on travel, rather than presumptions of innocence and of travel as a right.

As was made clear in the latest redacted version of Judge Alsup’s findings, Dr. Ibrahim was placed on the “no-fly” list because FBI Agent Kelley left the box on the “nomination” form for “no-fly list ” blank:

This negative check-off form might look like poor user-interface design, but it actually exposes the real mindset of those who believe that travel is a privilege for which the traveler bears the burden of justification: “Better to restrict the rights of innocent people than to leave anyone off the watchlist.”  Once the threshhold decision to place a name on a “watchlist” is made, the default is a categorical ban on all air travel and the widest possible dissemination of the blacklist information to other agencies and other countries’ governments (TUSCAN to Canada and TACTICS to Australia).

(3) There are no meaningful internal or administrative safeguards on no-fly and watchlist decisions. Administrative agencies cannot police their own secret internal actions. Transparency and independent judicial review are the only way to safeguard rights.

The DHS and FBI have claimed that internal administrative reviews of watchlist “nominations” are adequate safeguards against wrongful agency actions, and make judicial review unnecessary.  In this case, Agent Kelley’s mistake was obvious on inspection, and would have been detected as soon as anyone checked whether the action ordered by the form was supported by the rest of the file.  Nobody did so until after Dr. Ibrahim had been arrested and further mistreated when she tried to check in for her flight.  If anyone “reviewed” or approved Agent Kelley’s nomination of Dr. Ibrahim to the no-fly list, they rubber-stamped the form without ever looking at the rest of the file, much less making an independent assessment of the factual basis for the decisions. This was the essence of Judge Alsup’s due process findings.

(4) The problem is not limited to the “no-fly list”, and there is no clear line between a “watchlist” and a blacklist. You can’t build a system of surveillance and individualized dossiers without it inevitably having consequences for people’s lives. The travel dataveillance system needs to be dismantled, and the whole database needs to be purged.

In the portion of her closing arguments conducted in open court, Dr. Ibrahim’s attorney, Ms. Elizabeth Pipkin, stated that Dr. Ibrahim and her daughter, Ms. Raihan Mustafa Kamal, had “the same status on the no-fly list”.

Presumably that common status was that neither woman was on the no-fly list. The  government claimed that its “mistake” (in placing Dr. Ibrahim on the no-fly list) was corrected the same day as her arrest in 2005, and that it had not prevented Ms. Mustafa Kamal from flying to San Francisco to attend and testify at her mother’s trial.

Neither Dr. Ibrahim nor Ms. Mustafa Kamal are on the “no-fly” list. But when FBI Agent Kelley’s mistake in putting Dr. Ibrahim on the no-fly list was corrected, she was moved to, or left on, one or more watchlists — as Agent Kelley had intended.  At some point Ms. Mustafa Kamal was also placed on one or more watchlists. Agent Kelly’s reasons for his intended decision to place Dr. Ibrahim (and perhaps Ms. Mustafa Kamal — we don’t know if she was watchlisted at the same time or separately, by whom, or why) on one or more watchlists remain secret, and were never disclosed to Dr. Ibrahim or her attorneys or reviewed by the judge. Because the government admitted that the no-fly listing was unwarranted and a mistake, the court never reached the question of what to do if the government claims that a listing was justified.

The “no-fly” list and the government’s other “watchlists” aren’t actually separate lists. Both are contained in the consolidated Terrorist Screening Database (TSDB). The only difference between a “watchlist” entry and “no-fly” entry is a flag associated with an entry on the consolidated list.

According to a post-trial government filing, “Kelley designated Dr. Ibrahim as ‘handling code 3.’… The majority of individuals in the TSDB are assigned the lowest handling codes – codes 3 and 4.”  That same “status” — not flagged as a “no-fly” listing, and with one of the lowest “handling codes” — was sufficient to cause the DHS to send a message to the airline on which Ms. Mustafa Kamal had reservations. That message induced the airline (as it was intended to do) to refuse to fulfill its duty as a common carrier or allow Ms. Mustafa Kamal to exercise her right, as a U.S. citizen, to travel to the US.

A watchlist sounds like a list of people who are subject to passive monitoring.  In practice, “watching” or surveillance isn’t aimless. It’s for the purpose of making decisions affecting individuals. In the case of Ms. Mustafa Kamal, some other “watchlist” status had the same negative consequence, denial of boarding by an airline, as “no-fly” status. Dr. Ibrahim’s watchlist status (and perhaps the fact that she had once been on the no-fly list) led to her being unable to obtain a US visa, even lafter she was removed from the no-fly list.

In the future, “watchlist” needs to be understood as a euphemism for a de facto blacklisto that allows a level of deniability: “You’re not on the no-fly list. We just advised the airline not to let you fly.”

There’s no hard line between passive surveillance and active interference with individual’s activities. This lesson is well known to the FBI: Sending the FBI to question your employer can get you fired, even if the FBI is in theory merely collecting information and doesn’t order or explicitly recommend that you be fired.

Surveillance is itself stigmatizing, and stigma has consequences. During the Ibrahim trial, the government argued, verbally and in written pleadings, that it had not stigmatized Dr. Ibrahim because it “never” disclosed Dr. Ibrahim’s status on its lists to “anyone”. But in fact, the government disclosed Dr. Ibrahim’s status on the list, and later that of her daughter, to the airlines. These are precisely the entities to which it would be most damaging to have this stigma (suspicion of  posing a threat to aviation) disclosed.

(5) The US government is willing to lie to the courts to try to hide its mistakes and misconduct.

Before, during, and after the trial, officials including Attorney General Eric Holder and Director of National Intelligence James Clapper and lawyers for the government defendants claimed that to disclose anyone’s status on any watchlist, or the basis (if any) for assigning that status, would “cause significant harm to national security.”

This continued even after Judge Alsup and Dr. Ibrahim’s attorneys knew how Dr. Ibrahim had been placed on the no-fly list and that the government did not consider her to pose any threat to aviation.

Dr. Ibrahim’s lawyers sought to depose Attorney General Holder and DNI Clapper regarding their sworn declarations supporting the assertion of “state secrets” privilege by Holder and the other defendants. On motion of Holder and the defendants, Judge Alsup quashed the subpoenas for those depositions.

On its face, the government’s assertion amounts to a claim that to disclose to the public that Dr. Ibrahim was put on the no-fly list because an FBI agent failed to check a box on a form would harm national security.

Does the government really expect us to believe that would-be terrorists are deterred by their belief that the FBI is infallible, so that disclosing that the FBI once made a mistake would unleash the forces of terror?

We don’t think so. The government lied to cover up its mistakes and to protect itself against deserved criticism, not to protect national security.

Remember that the next time the government claims that something must be kept secret “because terrorism”.

Feb 08 2014

U.S. Embassy in Sana’a seizing U.S. citizens’ passports

Imagine that you are a US citizen living or traveling abroad.  Imagine that you go to the US Embassy to avail yourself of its “Consular Services” as a US citizen. Then imagine that embassy staff confiscate your US passport.

That’s what’s been happening to many, perhaps most, Yemeni-American US citizens who make the unwitting mistake (!) of showing their US passports at the entrance to the US Embassy in Sana’a, Yemen.

US citizens who have contacted us from Yemen for assistance have told us they believe that there are 500 or more US citizens now stranded in Sana’a, unable to leave Yemen or to return to the US without their passports.

One Yemeni-American who phoned us from Sana’a described going to the US Embassy to apply for a new US passport for his newborn child.  Any child of a US citizen is entitled by birth and parentage to US citizenship, and passports for children of US citizens born abroad are routinely issued by US embassies.

But instead of leaving the embassy with a new passport for his child, this Yemeni-American US citizen left the US Embassy without his own passport, which was confiscated without warning by embassy staff.  Other Yemeni-Americans have had their US passports seized when they visited the US Embassy in Sana’a for consular services in conjunction with Social Security or veterans’ benefits, visa or immigration applications for non-US citizen relatives, absentee voting in U.S. elections, or authentication of documents for other US government purposes.

A cable to Washington from the U.S. Embassy in Sana’a in 2009 released by Wikileaks (presumably among those leaked  by whistleblower Chelsea Manning) revealed that the embassy in Sana’a was already treating all immigrant visa applications as “considered fraudulent until proven otherwise.” The current treatment of US passport holders suggests the embassy has expanded this presumption to US passports in Yemeni-American hands. It’s a clear-cut case of discrimination against certain US citizens on the basis of Yemeni national origin.

The seizure of passports from US citizens at the US Embassy in Sana’a was first reported last year in Yemeni expatriate publications, around the time we were first contacted from Yemen by one of the affected individuals.  But most of those affected were understandably unwilling to be identified publicly, lest it reduce their chances of getting out of limbo. It took some time for the scope of the problem to become apparent,  for the story to be picked up by mainstream media, and for some of those U.S. citizens stranded in Yemen to begin to begin to identify themselves and tell their stories publicly.

A coalition of civil liberties organizations has now launched a bilingual English and Arabic website, MyEmbassyRights.US, including information on legal assistance and a downloadable “Know Your Rights” informational pamphlet for US citizens preparing to deal with the US Embassy in Sana’a.

Read More →

Feb 06 2014

More details of Judge Alsup’s decision in “no-fly” case

More details of Judge William Alsup’s decision in Ibrahim v. DHS, the first case challenging the US government’s “no-fly” list to go to trial, were made public today in the form of a redacted version of Judge Alsup’s findings, conclusions, and order.

In deference to the government’s insistence that even his verdict would reveal “secrets“, Judge Alsup originally issued his opinion and order temporarily under seal (to give the government a chance to appeal), accompanied by an unusual Public Notice and Summary.

Judge Alsup ordered the parties to try to agree on a redacted version of his opinion that both would allow to be made public. But after government’s lawyers declined to tell Dr. Ibrahim’s lawyers what, if any, portions of Judge Alsup’s opinion they believed had to be kept secret, or why, Judge Alsup ordered the government to file a minimally redacted version of the judge’s opinion by noon today.

The version of Judge Alsup’s order that the government has now made public still contains substantial redactions.  Some are surreal, such as the government’s belief that the public cannot be allowed to know Judge Alsup’s reasons for describing the treatment imposed on Dr. Ibrahim as “surreal”. Others are more substantive, such as the redaction of all of Judge Alsup’s finding concerning Dr. Ibrahim’s US-citizen daughter, who was prevented from traveling to the US to attend and testify at her mother’s trial.

But the government has, reluctantly, allowed us to know much more about why Dr. Ibrahim was treated so badly and what remedies Judge Alsup has ordered:

At long last, the government has conceded that plaintiff poses no threat to air safety or national security and should never have been placed on the no-fly list. She got there by human error within the FBI. This too is conceded. This was no minor human error but an error with palpable impact, leading to the humiliation, cuffing, and incarceration of an innocent and incapacitated air traveler. That it was human error may seem hard to accept — the FBI agent filled out the nomination form in a way exactly opposite from the instructions on the form, a bureaucratic analogy to a surgeon amputating the wrong digit — human error, yes, but of considerable consequence. Nonetheless, this order accepts the agent’s testimony.

Since her erroneous placement on the no-fly list, plaintiff has endured a litany of troubles in getting back into the United States. Whether true or not, she reasonably suspects that those troubles are traceable to the original wrong that placed her on the no-fly list. Once derogatory information is posted to the TSDB, it can propagate extensively through the government’s interlocking complex of databases, like a bad credit report that will never go away. As a post-deprivation remedy, therefore, due process requires, and this order requires, that the government remediate its wrong by cleansing and/or correcting all of its lists and records of the mistaken 2004 derogatory designation and by certifying that such cleansing and/or correction has been accurately done as to every single government watchlist and database. This will not implicate classified information in any way but will give plaintiff assurance that, going forward, her troubles in returning to the United States, if they continue, are unaffected by the original wrong….

FBI Agent Kelley made a plain, old-fashioned, monumental error in filling out the VGTOF nomination form for Dr. Ibrahim. He checked the boxes in exactly the opposite way from the instructions on the form, thus nominating Dr. Ibrahim to the no-fly list (against his intention). This was the start of all problems in Dr. Ibrahim’s case. Surprisingly, Agent Kelley first learned of this mistake eight years later at his deposition.

Significantly, therefore, our case involves a conceded, proven, undeniable, and serious error by the government — not merely a risk of error. Consequently, this order holds that due process entitles Dr. Ibrahim to a correction in the government’s records to prevent the 2004 error from further propagating through the various agency databases and from causing further injury to Dr. Ibrahim. By this order, all defendants shall specifically and thoroughly query the databases maintained by them, such as the TSDB, TIDE, CLASS, KSTF, TECS, IBIS, TUSCAN, TACTICS, and the no-fly and selectee lists, and to remove all references to the designations made by the defective 2004 nomination form or, if left in place, to add a correction in the same paragraph that the designations were erroneous and should not be relied upon for any purpose. To be clear, no agency should even rely on Agent Kelley’s actual unexpressed intention to nominate to certain lists in 2004, for the form instructions were not properly followed. The designations in the November 2004 form should be disregarded for all purposes…. A deadline will be set for defendants to file declarations under oath attesting to compliance.

This order finds that suspicious adverse effects continued to haunt Dr. Ibrahim in 2005 and 2006, even though the government claims to have learned of and corrected the mistake. For example, after her name was removed from the no-fly list, the next day, Dr. Ibrahim was issued a bright red “SSSS” pass. Less than a month after she was removed from the no-fly list, her visa was “prudentially” revoked. In March 2005, she was not permitted to fly to the United States. Her daughter was not allowed to fly to the United States even to attend this trial despite the fact that her daughter is a United States citizen. After so much gnashing of teeth and so much on-the-list-off-the-list machinations, the government is ordered to provide the foregoing relief to remediate its wrong. If the government has already cleansed its records, then no harm will be done in making sure again and so certifying to the Court.

With respect to the government’s TRIP program, which does provide a measure of post-deprivation relief, this order holds that it is inadequate, at least on this record.

Judge Alsup castigated the government for promising explicitly not to rely on alleged “state secrets” in its defense, and then trying to do so during and after the trial.

In the end, Judge Alsup found it unnecessary to rely on any “secrets” because the government conceded that Dr. Ibrahim did not and does not pose any threat and that her name had been placed on the “no-fly” list by “mistake”.  While Judge Alsup was able to find that Dr. Ibrahim was denied due process of law, his discussion of what due process might require if the government claimed (perhaps on the basis of “secret” information) that a “no-fly” listing was justified was consigned to a footnote:

In the instant case, the nomination in 2004 to the no-fly list was conceded at trial to have been a mistake. In this sense, this is an easier case to resolve. Harder no-fly cases surely exist. For example, the government uses “derogatory” information to place individuals on the no-fly list. When an individual is refused boarding, does he or she have a right to know the specific information that led to the listing? Certainly in some (but not all) cases, providing the specifics would reveal sources and methods used in our counterterrorism defense program and disclosure would unreasonably jeopardize our national security. Possibly, instead, a general summary might provide a degree of due process, allowing the nominee an opportunity to refute the charge. Or, agents might interview the nominee in such a way as to address the points of concern without revealing the specifics. Possibly (or possibly not), even that much process would betray our defense systems to our enemies. This order need not and does not reach this tougher, broader issue, for, again, the listing of Dr. Ibrahim was concededly based on human error. Revealing this error could not and has not betrayed any worthwhile methods or sources.

We think that the proper basis for inclusion of a name on a no-fly list is a no-fly injunction or restraining order, issued by a judge, with its attendant due process. No other no-fly case has yet made it to trial, but sooner or later the courts will have to address the hypothetical situation described by Judge Alsup in this  footnote.

The government has not yet given notice of its intent to appeal Judge Alsup’s decision. (When, as in this case, one of the parties to the case is a federal agency, the deadline for filing a notice of appeal is 60 days after the judgment or order appealed. Judge Alsup’s decision was issued on January 14th, so the government has until March 14th to decide whether to appeal.) Unless the government appeals, the decision will become final and will be made public in its entirety, unredacted, on April 15, 2014.

Jan 30 2014

9th Circuit overturns law making hotel guest registry an “open book” for police

Airlines and other common carriers aren’t the only travel companies that are sometimes required by governments to keep logs of their customers’ activities and make those records available to police.

Hotels, in particular, are often required or expected to spy on their customers for the (secret) police.

Sometimes, as in many European countries, this is mandated by national law. In the US, these requirements are more often encountered in state, county, and municipal codes.

The US Court of Appeals for the Ninth Circuit, after rehearing en banc, recently overturned one such local ordinance as being, on its face, a violation of the Fourth Amendment prohibition on unreasonable searches and seizures.

The ruling in Patel v. City of Los Angeles is indicative of what sorts of limits courts currently are, and aren’t, willing to put on these outsourced systems of government surveillance, and who has standing to challenge these requirements.

The case concerned Section 41.49 of the Los Angeles Municipal Code, “Hotel Registers and Room Rentals”, which requires that (1) any guest arriving without a reservation or paying for a room in cash must present a government issued identification document, (2) information about each guest including the details of the guest’s ID document and the license number of any vehicle parked on hotel premises by the guest must be recorded by the hotel in a written log book, card file, or electronic database, and (3) this guest register must be kept on the hotel premises, at or near the guest reception or check-in area, and “made available to any officer of the Los Angeles Police Department for inspection” at any time.

It’s only that last detail of the law — the requirement that the guest register be “made available” to any police officer without warrant, without the consent of the hotelier or the guest, without any requirement for suspicion or probable cause, and without any possibility of judicial review of police demands for the guest register — that was overturned by the 9th Circuit.  The ID requirement in the L.A. ordinance was not challenged in this case.

The en banc majority in Patel v. City of Los Angeles starts by taking for granted that information provided by a guest in order to satisfy government conditions on the rental of a place to sleep is being provided “voluntarily”:

To be sure, the guests lack any privacy interest of their own in the hotel’s records. United States v. Cormier, 220 F.3d 1103, 1108 (9th Cir. 2000); see United States v. Miller, 425 U.S. 435, 440 (1976). But that is because the records belong to the hotel, not the guest, and the records contain information that the guests have voluntarily disclosed to the hotel.

Whatever validity this doctrine might have with respect to information provided “voluntarily” to a third party, a disclosure is scarcely “voluntary” when, as in this case, (a) it is required by law as a condition of availing oneself of the services of a place of public accommodation, and (b) the alternative to disclosure is sleeping in the street or on the sidewalk.  (Under another provision of the same LA Municipal Code, it’s illegal to sit, lie, or sleep in the street or on the sidewalk In the City of Angels. But as part of a settlement following an earlier, now voided, ruling by the 9th Circuit, the LAPD has agreed not to enforce that provision of the law.)

People with no other place to sleep have a “choice” of whether to rent a room or walk the streets all night the same way people required to show government-issued ID in order to fly from Hawaii to the US mainland have a “choice” of whether to fly or walk on water.

But the 9th Circuit was able to find the law in violation of the 4th Amendment, despite this fictive “voluntariness”, because the lawsuit was brought by hotel owners, not hotel guests.  It’s the hoteliers’ rights that the court found were violated by (involuntary) warrantless, suspicionless, extrajudicial police inspection of their business records about their guests.

We salute Naranjibhai Patel, Ramilaben Patel, and the Los Angeles Lodging Association for using their legal standing to challenge this law and insist that the police go to a judge and come back with a warrant.

Most travel companies are only too happy to collaborate with government agencies in spying on their customers. They’d prefer that governments pay them for their work as informers and data collectors, of course. But even without cash compensation, they benefit from being able to blame the government for intrusive demands for credentials and personal information, while getting a free ride to monetize this government-coerced informational windfall for their own marketing and other purposes.

We can find no record of any other case in which a travel company has challenged government demands for information about travelers. Nor have we found any travel company that makes public what government requests or demands it has received for data about its customers, how it has responded to those requests or demands, or how much information it has handed over.  (Google publishes a “transparency report” for its Web services, but makes no mention of the exchanges of data between Google’s ITA Software airline reservations and PNR-hosting component and government agencies in the US or abroad.)

Police have plenty of ways to make life hard for the proprietors of mom-and-pop motels on skid row.  If the plaintiffs in Patel v. City of L.A. could say “No” to big-city police demands for information about their customers and guests, and prevail in court, so could major hotel chains and other large travel companies. Travelers should demand that they do so.

Jan 28 2014

Does a US citizen need the government’s permission to return to the US?

Do you think that if you are a U.S. citizen you have a right to return to your country, and don’t need “authorization” from the US government?

Article 12, section 4 of the ICCPR (a treaty ratified by and binding on the US) provides that “No one shall be arbitrarily deprived of the right to enter his own country.” And the right of US citizens to enter the US has long been recognized as one of the most fundamental aspects of the Constitutional right to travel.

But it appears that’s not what the US government thinks:

[Click image for larger version.]

This bizarre “yes-fly” document, first made public today and first published here, was provided to lawyers for Dr. Rahinah Ibrahim on the fourth day of the week-long trial last month of Dr. Ibrahim’s lawsuit challenging her placement on the US government’s “no-fly” list.

The day before the trial began, Dr. Ibrahim’s US-born US-citizen daughter, Ms. Raihan Mustafa Kamal, was denied boarding on the first of a set of connecting flights she had booked from Malaysia to to San Francisco to attend and testify at her mother’s trial.

Lawyers for the government defendants, including US Customs and Border Protection (CBP), claimed that they had “confirmed that the defendants did nothing to deny plaintiff’s daughter boarding…. she just simply missed her flight. She has been re-booked on a flight tomorrow. She should arrive tomorrow.”

As it turned out, none of those claims were true. Ms. Mustafa Kamal hadn’t “missed” her flight. She showed up on time, but , but was denied boarding as a result of an email message from CBP to the airline. She wasn’t booked on any other flight, and she never made it to her mother’s trial.

At a hearing held the afternoon after the rest of the trial had concluded, Dr. Ibrahim’s lawyers presented a sworn declaration from Ms. Mustafa Mamal including a copy provided to her by Malaysia Airlines of the email message from CBP that led to her being denied boarding.

In response to Judge Alsup’s demands (“I want a witness from Homeland Security who can testify to what has happened. You find a witness and get them here…. I want to know whether the government did something to obstruct a witness”), the defendants brought the director of the CBP’s National Targeting Center, Ms. Maureen Dugan, to San Francisco to testify and face cross-examination about what had happened to Ms. Mustafa Kamal. At the defendants’ insistence, however, the courtroom was cleared of spectators for all of Ms. Dugan’s testimony and the remainder of that hearing.

The defendants also filed a declaration from Ms. Dugan. That declaration was filed “under seal”, but after his verdict Judge Alsup reiterated his order that a  summary or redacted version of each sealed document, specifically including Ms. Dugan’s declaration, be made public.

Today the government defendants filed a redacted version pf Ms. Dugan’s declaration about what happened to Ms. Mustafa Kamal, including the “AUTHORIZATION TO TRANSPORT UNITED STATES CITIZEN TO THE UNITED STATES” reproduced above.

So now, as a result of this case and specifically as a result of CBP’s misconduct with respect to Ms. Mustafa Kamal, we have seen for the first time both a no-fly message and a yes-fly message.

What can we learn from these strange goings-on and communications?

The US government seems to think that even US citizens need the government’s permission to travel to the US. The CBP didn’t issue a reminder to airlines or other common carriers of their general obligation to transport all qualified would-be passengers, or sanction the airline for denying boarding to Ms. Mustafa Kamal despite her undisputed US birth and US citizenship.

Rather, the CBP issued an individualized, time-limited authorization to airlines to transport Ms. Mustafa Kamal to the US. Such affirmative, individualized “authorization” would make no sense unless the default, even for a US citizen, is, “NO.”

This is a blatant violation of US citizens’ Constitutional rights, and of US obligations as a party to the ICCPR.

(A somewhat similar “Transportation [Authorization] Letter” is discussed on p. 46 of the CBP  Carrier Information Guide for airlines. But the example shown in the Carrier Information Guide is for a non-US citizen whose “Green Card” has been lost, stolen, or damaged while they are abroad, and who needs temporary evidence of permanent US residency to be able to return to the US to get her Green Card replaced.  A Green Card — US permanent residency document — can’t be replaced outside the US, but a passport can. So it’s unclear why a US citizen would need such a document in lieu of an emergency passport, or why it would be considered better evidence of US citizenship than a passport.)

But why did CBP send a “possible no-board request” with respect to Ms. Mustafa Kamal?

Was Ms. Mustafa Kamal, like her mother, “mistakenly” placed on the no-fly list? Dr. Ibrahim’s lawyer — who knows Dr. Ibrahim’s status on or off the no-fly list, but is not allowed to disclose this information to her client or to the public — stated in open court during closing arguments that Ms. Mustafa Kamal’s status on the “no-fly” list was “the same as that of her mother”.  But it seems more likely, from the rest of what has been claimed publicly, that neither of them are currently on the no-fly list.  If Ms. Mustafa Kamal were, in fact, on the no-fly list, it would have been an out-and-out lie for government lawyers to tell Judge Alsup that their client CBP was not responsible for the airline’s denial of boarding to Ms. Mustafa Kamal.

A more likely explanation is that Ms. Mustafa Kamal and her mother are currently both on what was described euphemistically in pleadings made public in redacted form yesterday as a “watchlist”, but which is used in a manner that results in it functioning as a de facto blacklist with the same effect as the “no-fly” list.  The email message sent to the airline didn’t say anything explicit about the no-fly list, but its natural and foreseeable consequence was that Ms. Mustafa Kamal would be denied boarding — as in fact she was.

Perhaps most disturbingly, this suggests that the government could nominally comply with Judge Alsup’s order to remove Dr. Ibrahim from the “no-fly” list, but keep her on a “watchlist” that has the same effect.

Only if Dr. Ibrahim gets a US visa (which seems unlikely) and tries to travel to the US, or if she tries to fly on a US-flag carrier (such as on United Airlines from Singapore to Hong Kong or Tokyo), or if Ms. Mustafa Kamal tries again to travel to the US, are we likely to learn more about what actual US government actions and restrictions either of them is subjected to. That, and not the label placed on any list, is what matters.

Jan 22 2014

Judge orders more disclosure about what happened to daughter of plaintiff in “no-fly” trial

One of the most disturbing aspects of the trial last month in Dr. Rahinah Ibrahim’s lawsuit challenging her placement on the US government’s “no-fly” list was what happened to Dr. Ibrahim’s daughter, Ms. Raihan binti Mustafa Kamal.

Ms. Mustafa Kamal, a lawyer and member of the Malaysian bar, was born in the US and is a US citizen.  She accompanied her mother to the airport in Kuala Lumpur in March 2005 when, after having been allowed to travel from the US to Malaysia (and after being assured that the “mistake” that led to her arrest when she tried to leave San Francisco had been corrected), Dr. Ibrahim was prevented from board a flight back to the US.

The government defendants had been notified that Ms. Mustafa Kamal might testify at her mother’s trial, as an eyewitness to these events.  But the day before the trial, when Ms. Mustafa Kamal tried to board a flight in K.L. that would connect her to San Francisco, she was denied boarding as a result of a message sent to the airline by US Customs and Border Protection (CBP), one of the defendants in the lawsuit. Ms. Mustafa Kamal never made it to the US for her mother’s trial.

The afternoon following the conclusion of the trial, Judge William Alsup held a hearing behind closed doors at which the government defendants presented a written declaration and in-person testimony about what happened to Ms. Mustafa Kamal from Maureen Dugan, Director of the CBP’s “National Targeting Center” in Reston, Virginia.  That declaration and that testimony are likely to have provided the most detailed explanation yet provided in any US legal proceeding as to the mechanisms by which an entry on a “watchlist” is translated into messages to, and action by, an airline that denies boarding to an individual.

After this hearing, Judge Alsup offered Dr. Ibrahim opportunities to request that he re-open the case the presentation of evidence to allow Ms. Mustafa Kamal time to make another attempt to travel to the US to testify. But Dr. Ibrahim’s lawyers declined that offer:

At the closed hearing on Friday, December 6, 2013, regarding the travel difficulties of plaintiff’s daughter, Raihan Mustafa Kamal, the Court allowed plaintiff the opportunity to consider whether to re-open evidence for Ms. Mustafa Kamal to testify. Because of concerns about the safety and liberty of Ms. Mustafa Kamal were she to attempt to travel to the United States, plaintiff elects to proceed on the evidence presented at the trial.

As we noted at the time, the most obvious potential concern for Ms. Mustafa Kamal is that she might be allowed to fly to the US, but then not allowed to return to Malaysia, where she lives and works.

The transcript of the December 6, 2013 hearing, along with the rest of the transcripts of closed portions of the trial, remains sealed, at least for now, pending the possibility of government appeals. In addition, despite Judge Alsup’s orders that any sealed written filings in the case musty be accompanied by versions redacted for publication or public summaries, no public summary or redacted version of Ms. Dugan’s declaration has been filed.

Judge Alsup has now ordered the government defendants to file a public version of Ms. Dugan’s declaration about what happened to Ms. Mustafa Kamal by January 28, 2013.  We expect that the government’s redactions will, as usual, be excessive and unjustified. But at a minimum, this will compel the government to further refine exactly what about this case it thinks need to be kept secret from the public, and why.

Dec 09 2013

“No-fly” trial: What happens now?

Today lawyers representing Dr. Rahinah Ibrahim in the first lawsuit challenging a no-fly order to make it to trial filed a notice with the court in San Francisco that they would not seek to re-open the case to present more evidence from and/or regarding Dr. Ibrahim’s daughter, Raihan Mustafa Kamal.

Ms. Mustafa Kamal, who unlike her mother is a U.S. citizen, was with her mother on one of the occasions when she was denied boarding, and was to have been a witness in her mother’s case. But Ms. Mustafa Kamal was herself denied boarding at the behest of the CBP (one of the defendants in the case) when she tried to fly from Malaysia, where she lives, to San Francisco for the trial last week.

In today’s filing, Dr. Ibrahim’s lawyers said that

At the closed hearing on Friday, December 6, 2013, regarding the travel difficulties of plaintiff’s daughter, Raihan Mustafa Kamal, the Court allowed plaintiff the opportunity to consider whether to re-open evidence for Ms. Mustafa Kamal to testify. Because of concerns about the safety and liberty of Ms. Mustafa Kamal were she to attempt to travel to the United States, plaintiff elects to proceed on the evidence presented at the trial, with one caveat that plaintiff mentioned at the hearing on Friday. [emphasis added]

The most obvious potential concern for Ms. Mustafa Kamal is that she might be allowed to fly to the U.S., but then not allowed to return to Malaysia, where she lives and works.

The “caveat” mentioned in today’s filing is that Dr. Ibrahim’s lawyers want to be allowed to refer to the evidence about what happened to Ms. Mustafa Kamal as evidence relevant to what happened to her mother:

Ms. Mustafa Kamal’s status and the effects of [it] are relevant to Dr. Ibrahim’s right to travel. The government has denied the very adverse effects for Dr. Ibrahim that Ms. Dugan’s testimony proves in fact occur.

We are extremely grateful to the anonymous reader who came forward with an offer to pay for a ticket for Ms. Mustafa Kamal — who said in her declaration that she could not afford another one — if she wanted to make another attempt to fly to San Francisco to testify in person. We were able to communicate that offer to Dr. Ibrahim’s payers before they filed their notice with the court today.

Friday’s hearing with respect to Ms. Mustafaf Kamal was closed to the press and public, and no orders from the court have been made public with respect to any of the issues it might have raised.

[Update: On Tuesday, Dec. 10, 2013, Judge Alsup requested further briefing, to be completed by December 20th, on whether the evidence concerning what happened to M.s Mustafa Kamal can be considered by him in reaching his decision in Dr. Ibrahim’s case.]

Judge William Alsup has ordered each side to file proposed findings of fact and law by this Friday, December 13, 2013. He has also requested additional briefing on which categories of information claimed by the government to be “secret” can be accepted as evidence, and which of that evidence can be made public. The brief on this issue from Dr. Ibrahim’s lawyers is especially interesting.

Judge Alsup reserved judgment on many of these issues related to government claims of “secrecy”. He could still decide to exclude some evidence previously admitted provisionally, or to make public some exhibits filed under seal and/or transcripts of some portions of the trial for which the courtroom was cleared.

Judge Alsup could schedule additional oral argument on any of these issues, but normally a judge who has heard such a bench trial would issue a written opinion, without further hearing, some weeks or months later.  There is no deadline or standard schedule for the issuance of such an opinion.

Reports on the trial in Ibrahim v. DHS:

Court records:

Updates and other articles: