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Category Archives: Papers, Please

Apr 11 2011

California bill would condition the right to travel on … draft registration?

A bizarre bill currently pending in the California Senate, S.B. 251, introduced Feb. 10, 2011, by Senator Lou Correa of Orange County, would require all applicants for California drivers’ licenses to consent to having the information they provide to the state Department of Motor Vehicles forwarded to the U.S. Selective Service System and used to register them for a possible military draft.

Whatever one may think of Selective Service, the draft, draft registration, or the wars for which they might be used, this bill reflects a disturbing failure by its sponsors to recognize that travel, within and between states as well as internationally, is a right — subject only to the most limited and essential administrative restrictions — and not a privilege that can at the government’s whim, to serve unrelated purposes, be granted, denied, encumbered, or conditioned on the waiver of other rights.

In our letter to the California Senate’ Standing Committee on Transportation and Housing, which will hold a hearing on S.B. 251 tomorrow where we plan to testify, we outlined our objections as follows:

Read More →

Mar 18 2011

State Dept. proposes “Biographical Questionnaire” for passport applicants

The U.S. Department of State is proposing a new Biographical Questionnaire for passport applicants. The proposed new Form DS-5513 asks for all addresses since birth; lifetime employment history including employers’ and supervisors names, addresses, and telephone numbers; personal details of all siblings; mother’s address one year prior to your birth; any “religious ceremony” around the time of birth; and a variety of other information.  According to the proposed form, “failure to provide the information requested may result in … the denial of your U.S. passport application.”

The State Department estimated that the average respondent would be able to compile all this information in just 45 minutes, which is obviously absurd given the amount of research that is likely to be required to even attempt to complete the form.

The proposed “Biographical Questionnaire” follows the introduction in December 2010 of a new Form DS-11 for all passport applicants. It seems likely that only some, not all, applicants will be required to fill out the new questionnaire, but no criteria have been made public for determining who will be subjected to these additional new written interrogatories.

It’s not clear from the supporting statement, statement of legal authorities, or regulatory assessment submitted by the State Department to the Office of Management and Budget (OMB) why declining to discuss one’s siblings or to provide the phone number of your first supervisor when you were a teenager working at McDonalds would be a legitimate basis for denial of a passport to a U.S. citizen.

The State Department is accepting comments for OMB on this proposal on this proposal for 60 days, which began February 24, 2011, and thus should run through April 25, 2011. (Under the Paperwork Reduction Act,  OMB must approve and assign an OMB control number before any new form can be used.) Details and instructions for submitting comments are in the Federal Register notice (also available here as a PDF):

You may submit comments by any of the following methods:

E-mail: GarciaAA@state.gov
Mail (paper, disk, or CD-ROM submissions): Alexys Garcia, U.S. Department of State, 2100 Pennsylvania Ave., NW., Room 3031, Washington, DC 20037
Fax: 202-736-9202
Hand Delivery or Courier: Alexys Garcia, U.S. Department of State, 2100 Pennsylvania Ave., NW., Room 3031, Washington, DC 20037

You must include the DS form number [DS-5513], information collection title [Biographical Questionnaire for U.S. Passport], and OMB control number [none yet assigned; 1405-XXXX requested by Dept. of State] in any correspondence.

Alternatively, you can submit comments online at Regulations.gov until midnight EDT on Monday, April 25, 2011.  Go here, then click the “Submit a Comment” button at the upper right of the page.

(Note that the proposed form itself was not published in the Federal Register. We were eventually provided with a copy after requesting it from the Department of State, and have posted it here.)

We’ve submitted comments, and we encourage others to do so as well.

Our comments (PDF) were co-signed by the Center for Financial Privacy and Human Rights (CFPHR), Knowledge Ecology International (KEI), Center for Media and Democracy (CMD), Privacy Activism, Consumer Travel Alliance (CTA), Robert Ellis Smith, and John Gilmore. If you would like to use these for ideas for comments of your own, here’s a version in OpenOffice format for easier editing.

You can view the comments docketed to date here. (There’s sometimes a delay of up to several days before comments are docketed, so don’t panic if you don’t see yours immediately.)

Extra points to the person who gives the best answer in the comments to the question, “”Please describe the circumstances of your birth including the names (as well as address and phone number, if available) of persons present or in attendance at your birth.”

[P.S. – To those who have been wondering if this is a hoax: We understand that it may seem fishy that the State Department chose to publish a notice in the Federal Register that it was proposing a new form, but didn’t publish the proposed form itself in the Federal Register. But that was their choice of how to proceed, not ours. We were sent the proposed Form DS-5513 in March, in response to our request, by the person identified in the Federal Register notice as the point of contact from whom it could be obtained: Alexys Garcia, GarciaAA@state.gov, 212-736-9216. We immediately published the form we received from the State Department here on our website. There’s more at the links in the sidebar on who we are and how to contact us, as well as links to press reports on our previous work and current projects. You can also check out the other co-signers of the comments we submitted to the State Department. We’re for real, and so is this proposal from the State Department. We wish this were a hoax, but it’s not.]

[Follow-up: Public outrage at proposed questionnaire for passport applicants]

[Follow-up: State Dept. already using illegal passport questionnaire]

[Follow-up: State Dept. responds to passport form furor — with lies]

Jan 24 2011

Audio: State of New Mexico v. Phillip Mocek

We’ve uploaded our complete audio recording and some of our photos of Phil Mocek’s trial to the Internet Archive (Archive.org). Trials at this level in New Mexico are neither recorded nor transcribed by the court, so this is the most nearly complete record of the trial available.

The MP3 recordings can be streamed from here or downloaded directly from the links below:

Thursday, January 20, 2011 (Day 1):

Friday, January 21, 2011 (Day 2):

Dramatis Personae:

  • Phillip Mocek, Defendant

    Phillip Mocek

  • Judge Kevin L. Fitzwater, Bernalillo County Metropolitan Court

  • Bernalillo County Chief Deputy District Attorney Mark Drebing (closing argument)

  • Bernalillo County Deputy District Attorney Daniel Rislove (opening argument)

  • Molly Schmidt-Nowara, Defense Counsel (closing argument)

  • Nancy Hollander, Defense Counsel (opening argument)

  • TSA Lead Transportation Security “Officer” Jonathon Breedon

  • Albuquerque Aviation Police Department Officer Robert F. Dilley

  • The ladies of the jury (not publicly named and not heard on the recording)

White noise heard on the recording was played in the courtroom during “sidebar” discussions when the jury was present, to keep these discussions from being heard by the jury.

Except during opening and closing arguments, when the recordings were made from the podium, these recordings were made from a single spot in the audience, behind the bar. We were permitted to record, with the court’s permission, but we were not permitted to fix microphones or wires or tap into the public address system.  We apologize for any inadvertent gaps.

More:

(Click images for high-resolution versions. Please credit photos to PapersPlease.org.)

 

Jan 22 2011

Phil Mocek found “NOT GUILTY” by Albuquerque jury

A six-woman Bernalillo [NM] County Metropolitan Court jury has found Phil Mocek “NOT GUILTY” (video) of all of the charges brought against him following his arrest in November 2009 at the TSA checkpoint at the Albuquerque airport.

We’ll be posting audio recordings and photos of the trial.  The jury returned its verdict Friday evening after about an hour of deliberation, following a two-day trial we attended. (Video of the verdict and excerpts from Mr. Mocek’s reaction; longer audio of Mr. Mocek’s responses to questions in the hallway outside the courtroom immediately after the verdict; complete audio and pohotos of the trial.)

Mr. Mocek did not testify, and the defense rested on Friday without calling any witnesses or presenting any evidence. The jury found that even without rebuttal, the TSA and Albuquerque police had failed to satisfy their burden of proving any of the four charges: concealing his identity, refusing to obey a lawful order (it was never entirely clear whether this was supposed to have been an order to turn off his camera, an order to leave the airport despite having a valid ticket, or an order to show ID, none of which would have been lawful orders), trespassing, and disorderly conduct.

The best evidence in the case was the video from Mr. Mocek’s digital camera that both the TSA and the police had tried to stop Mr. Mocek from filming, and which ended when they seized his camera out of his hands and shut it off.

In her closing argument, defense counsel Molly Schmidt-Nowara argued that the police and TSA witnesses were not credible, that their testimony was contradicted by the video and by common sense, that what they really objected to was having Mr. Mocek legally take pictures, and that any disorderly conduct was on the part of the police and TSA.

The verdict of “NOT GUILY” on all counts shows that the jurors saw through the police and TSA lies.

Mr. Mocek, of course, is still out thousands or tens of thousands of dollars in legal fees and expenses for repeated trips to Albuquerque to defeat this frame-up attempt.

But we hope that Mr. Mocek’s acquittal will encourage and empower others to question the unlawful demands of the TSA — including their demands that we waive our right to remain silent, provide them with evidence as to our identity, and submit to virtual strip-search machines or groping — and to photograph and record our interactions with the TSA’s cop-wannabes and rent-a-cops and the local law enforcement officers who provide their muscle.

(See also our FAQ: What you need to know about your rights at the airport.)

We also hope that this verdict will teach police not to blindly back up the TSA when the TSA calls upon law enforcement officers to “deal with” travelers to whose actions the TSA has, for whatever reason, taken a dislike. This verdict shows that jurors can see through their lies when they make up stories and false accusations against travelers.

Uncontested TSA and police testimony at the trial established, among other things, three important points:

  1. Despite calling themselves “officers”, TSA checkpoint staff are not law enforcement officers and have no police powers — and both TSA and police are fully aware of this. When the TSA calls for the police, they are just like any other civilians who call the police, and the police have no obligation to do what they ask.  Police should not act, and have no right to act, in such a case, unless the police have a reasonable basis for believing that a crime has actually been committed or is being committed.
  2. You have the right, recognized by the TSA, to fly without showing ID. “It happens all the time. We have a procedure for that,” according to the lead TSA “Travel Document Checker” at the Albuquerque airport. Signs and announcements in airports saying that all passengers must present ID are false.
  3. You have the right, recognized by the TSA, to photograph or film anywhere in publicly accessible areas of airports including TSA checkpoints, as long as you don’t violate any local laws, photograph the images on the screening monitors, interfere with the screening process, or slow down the line. (Whether those limitations to your First Amendment rights claimed by the TSA are legal or Constitutional was not decided in this case, since Mr. Mocek wasn’t violating any local law, filming the images on the screening monitors, interfering with the screening process, or slowing down the line.) Signs or statements that photography is prohibited at Federal checkpoints are, in general, false.

Annoying the TSA is not a crime. Photography is not a crime. You have the right to fly without ID, and to photograph, film, and record what happens.  Your best defense is your own camera and microphone.  Ordinary jurors know, and are prepared to recognize with their verdict, that the TSA and police lie about what they are doing and why.

We salute Phil Mocek for standing up for all of us and our rights, and encourage supporters to contribute to help pay off his legal bills.

Jan 21 2011

Why are we here in Albuquerque at Phil Mocek’s trial?

Bernalillo County Metropolitan Court (left); U.S. District Court for the District of New Mexico (right) [Bernalillo County Metropolitan Court (left); U.S. District Court for the District of New Mexico (right); Albuquerque police (center, turning towards camera)]

Why are we here? We’re here in Albuquerque to observe the the trial of Phil Mocek, which began yesterday and continues today. We’re here with other folks who’ve flown, driven, and ridden trains and buses from across the country to show our support for those who question the illegitimate claims to authority of the TSA and try to document what happens when you try to travel without showing ID.

Once we are able to process them, we’ll be posting audio recordings and photos as well as more details from the trial.

Before we get to what’s happened in court, however, we need to answer a preliminary question: Why is this case in Bernalillo County Metropolitan Court (above, left) and not across the street in Federal court (above, right)?

That question seems especially natural to those who read the hit-piece on the front page of the Albuquerque Journal the day before the trial began.  Apparently intended to prejudice potential jurors against Mr. Mocek, and posted approvingly by the District Attorney on Twitter and her Facebook wall, that story focused on (false) claims that passengers are “required” to show government-issued ID to fly.

But the reason this case isn’t in Federal court is that TSA procedures (and, more importantly, neither any Federal law or regulation, the U.S. Constitution, or international  human rights treaties) don’t require travelers to show ID and don’t prohibit photography or recroding at TSA checkpoints.

If there were any such Federal rule against what Mr. Mocek was doing, the TSA would have called the FBI, not the local police, and Mr. Mocek would have been charged with Federal offenses.

That didn’t happen.  Mr. Mocek has never been accused of any violation of any TSA or other Federal regulations or laws.  He was arrested and is on trial on (false) state and local charges precisely because the TA and Albuquerque police objected to his exercising his rights under Federal law.

On the contrary, the first day of this trial confirmed that, as we’ve said all along:

  • You have the right to travel without showing ID. TSA “officers” know this, are trained to deal with it, and do so every day, despite signs to the contrary at every airport and on the TSA’s website.
  • You have the right under Federal law and TSA rules to record and photograph throughout TSA checkpo0ints, as long as (they say) you aren’t “interfering” with screening or photographing the displays on the X-ray machines and other monitors.

In their opening statements, both Assistant District Attorney Daniel Rislove and defense attorney Nancy Hollander agreed that ID is not required to fly. That was confirmed by the sole witness to testify (for the prosecution) before the trial recessed yesterday.

Lead Transportation Security “Officer” Jonathan Breedon (he admitted that TSA checkpoint personnel are not law enforcement officers), who was in charge of the “travel document checking station”, testified that the TSA doesn’t require anyone to have or show ID to travel. You can travel without ID, and, “It happens all the time. We have a procedure for that,” he testified, although he claimed that the procedure for flying without ID is secret “Sensitive Security Information,” as is the form that is given to each person who flies without ID for them to sign, and which we posted online years ago.

Cross-examined about the version of the form from 2008 on our website, he said the current form has different typography and a few additional check-boxes at the bottom, but contains essentially the same information. If anyone has a copy of the current version of the form, please let us know ASAP.

What the TSA doesn’t have procedure for, apparently, is what to do when a traveler exercises their right to photograph or record what is being done to them.  Under cross-examination, Lead TSO Breedon admitted that the statement to Mr. Mocek on the video played in court, “It’s a Federal checkpoint. You can’t take pictures here,” was false. But despite knowing that was false, the TSA staff called in the local police and then stood aside while they arrested Mr. Mocek on false charges.

The trial will resume at 9:30 Friday morning with testimony from the Albuquerque police, followed by the case for the defense. The case could go to the jury Friday afternoon.

To be continued…

Jan 10 2011

Interviews with Antiwar.com and KPFK radio

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

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

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

Jan 08 2011

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

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

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

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

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

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

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

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

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

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

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

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

Dec 08 2010

Phil Mocek trial postponed again; no hearing Thursday

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

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

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

Read More →

Dec 07 2010

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

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

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

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

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

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

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

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

What is the TSA trying to hide?

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

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

Dec 06 2010

“TSA case goes to trial tomorrow in Albuquerque”

Albuquerque’s Weekly Alibi reports today in their blog on the trial of “Freedom Flyer” Phil Mocek scheduled to begin Tuesday morning:

Phil Mocek’s trial in Bernalillo County Metro Court tomorrow might be the first of its kind in the country. He was arrested after refusing to present identification to the Transportation Security Administration….

Edward Hasbrouck is a consultant to the Identity Project in California…. “We were obviously disturbed to find that Mr. Mocek had been arrested and had been essentially framed on these charges,” Hasbrouck says in an interview with the Alibi.

He adds that the four charges leveled against Mocek are not the real reasons he was arrested. “The real reason he was arrested is that the TSA didn’t like what he was doing,” Hasbrouck says. “The real charge is questioning the illegitimate authority of the TSA. Now, why the local authorities are choosing to put themselves out on a limb, trumping up bogus charges just to keep the TSA [happy] is a question that you’d have to ask the prosecutor in Albuquerque.”

Neither Dan Rislove, the attorney representing the state, nor TSA spokesperson Luis Casanova have yet returned the Alibi’s calls.

Ironically, despite the nationally precedent-setting TSA resistance case about to go to trial, an airport spokesperson told Albuquerque’s KRQE-13 TV news last month that, with respect to TSA “screening” procedures at ABQ,  “We have not seen a lot of resistance locally here.”

We’ll be posting updates on the trial here.  But since no cell phones, laptops, pagers, or other electronic communications devices are allowed anywhere in the courthouse, don’t expect live-blogging or for us to be able to return phone calls or e-mail messages from the courthouse or until the end of each day of the trial.