Four days before a Federal judge was scheduled to hear arguments in a lawsuit brought by four Muslim US citizens who were placed on the US government’s “no-fly” list to try to pressure them into becoming informants for the FBI, the government has notified the plaintiffs in the case that all of them have been removed from the no-fly list.

The plaintiffs in Tanvir v. Lynch are continuing to press their claims, as are other US citizens challenging their placement on the no-fly list in retaliation for declining to inform on their friends, families, communities, and fellow worshippers.  But we expect that, as has been its pattern, the government defendants will now try to get the case dismissed as “moot“.

So far as we know, every other instance in which the US government has told anyone whether or not they are or were on the no-fly list, or that they have been removed from that list, has come after the victims of these no-fly orders have challenged them in Federal court.

Either (1) the government never had any reason to think any of these people posed a threat to aviation, but never bothered to assess the basis, if any, for belief that they posed such a threat until faced with the imminent need to defend their blacklisting to a Federal judge. Or (2) the government genuinely (although mistakenly and without any adequate basis) believed that they posed a threat, but saw the possibility of judicial review of no-fly decisions as a greater threat to the standard operating procedures of the TSA, DHS, and FBI. Or (3) both of the above.

We’ll take Door Number 3, if you please.

In a filing with the Court of Appeals reviewing a TSA mandate for airlines to interogate passengers on international flights before allowing them to board, the TSA has directly contradicted previous explicit written statements by an official TSA spokesperson as to whether passengers are required by the TSA to answer questions from airline staff about their travel purposes as a condition of being allowed to fly.

Equally if not more disturbingly, the TSA also claimed in the same filing with the 11th Circuit Court of Appeals that an airline licensed by the US government to operate as a common carrier has “independent discretion to deny boarding to any passenger about whom they have a concern.”

In an email message in January of this year to “professional troublemaker” and frequent traveler Jonathan Corbett, the TSA “Office of Global Strategic Communicationsa Desk” said:

American Airlines is required to conduct a security interview with passengers prior to departure to the United States from an overseas last point of departure airport. If a passenger declines the security interview, American Airlines will deny the passenger boarding. The contents of the security program and the security interview are considered Sensitive Security Information (SSI).

But when Mr. Corbett petitioned the 11th Circuit Court of Appeals to review the TSA’s secret orders to airlines containing this mandate, the TSA filed the following statement with the court:

Interviews are … intended only to determine screening protocols before a passenger may fly. TSA does not direct U.S. aircraft operators to refuse to carry a passenger who declines participation in the interview process.

This isn’t the first time the TSA has told Federal judges that official TSA notices and public statements about what air travelers are “required” to do, as a condition of being “allowed” to exercise our right to travel, are false.

In 2006, the TSA told the 9th Circuit Court of Appeals panel reviewing the requirement for air travelers to show government-issued ID credentials in Gilmore v. Gonzalez that there is no such TSA requirement in the secret TSA security directives to airlines, despite notices still posted at TSA checkpoints (and, at the time, on the TSA website) that passengers are required to show ID. Most people who are unable and/or unwilling to show ID are allowed to fly, although some aren’t. There are no rules or publicly-disclosed criteria for who the TSA does or does not allow to fly.  The TSA’s orders to the airlines, and the airline policies approved by the TSA, are secret.

At a minimum, the TSA’s repeated disavowals in court of what it has publicly claimed or implied are TSA requirements mean that travelers cannot resoanably be expected to believe or rely on those official but not legally beinding TSA statements, and have good cause to demand that TSA explicitly state whether anything they ask is a legally-binding TSA “order”, a request, or an airline or or other private demand not mandated by the TSA. Noncompliance with requests not explicitly identified by TSA staff as TSA orders cannot reasonably construed as interference with, or refusal to submit to, TSA requirements.

The only way to reconcile the TSA’s statement to the court that “TSA does not direct U.S. aircraft operators to refuse to carry a passenger who declines participation in the interview process” with the agency’s previous statement to the public that, “If a passenger declines the security interview, American Airlines will deny the passenger boarding,” is that the airline — on its own initiative and inidepndently of the TSA-mandated and TSA-approved “security program” — has committed to the TSA that it will deny boarding to anyone whoi declines to answer the airline’s questions about their travels.

That possible interpretation is supported by the TSA’s further statement to the Court of Appeals:

While … carriers retain their independent discretion to deny boarding to any passenger about whom they have a concern, whether as a result of an interview or otherwise, that outcome is not dictated by the international security interview program.

The problems with this — aside from the TSA’s misleading statements to the public about the source of this “requirement” — are that an airline, by law, has no such discretion, and that the TSA is required by law (49 USC § 40101) to “consider … the public right of freedom of transit through the navigable airspace” in carrying out its responsibilities including approving airline policies.

The duty of the TSA, if it becomes aware of an airline policy or practice to exercise such unlawful “discretion” or claim the “right to refuse service”, is to disapprove the policy or practice. If an airline persists in such a practice, the duty of the TSA is to order the airline to discontinue to the practice or, if that is outside the TSA’s jurisdiction, to refer the airline to the Department of Transportation for the imposition of sanctions, which ultimately could include the revocation of the airline’s certification from the DOT to operate as a common carrier.

It’s bad enough that airlines are trying unilaterally to abrogate their responsibilities as common carriers. It’s far worse that the government is acquiescing in, much less encouraging, such practices.

This week is Stop C-51 Week, marked by events throughout Canada and elsewhere in opposition to Bill C-51, currently under consideration by the Parliament of Canada, “An Act to enact the Security of Canada Information Sharing Act and the Secure Air Travel Act, to amend the Criminal Code, the Canadian Security Intelligence Service Act and the Immigration and Refugee Protection Act and to make related and consequential amendments to other Acts.”

We’ve joined a who’s who of civil liberties and human rights organizations, activists, and experts from Canada and around the world who have co-signed a letter to Prime Minister Stephen Harper opposing Bill C-51.

It’s only a slight oversimplification to say that Bill C-51 is Canada’s version of the USA Patriot Act, 13 years later but on steroids.  It appears to violate the Canadian Charter of Rights and Freedoms and Canadian obligations pursuant to several human rights treaties including the International Covenant on Civil and Political Rights (ICCPR).  But if enacted, and if not voided on constitutional grounds by Canadian courts, it would purport to authorize a wide range of government spying, “pre-crime” policing (profiling), and preemptive interference with the exercise of fundamental rights.

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In updates filed with Federal courts in at least two pending challenges to US government “no-fly” orders, lawyers for the government have revealed plans for changes to the internal procedures administrative agencies use in deciding who they “allow” to fly — and who they don’t.

While these changes look like cosmetic but inadequate improvements, they actually include an obscure but much more significant change designed to make it harder for people on the no-fly list to get the factual basis (if any) for the decision to put them on the list reviewed by a judge.

By shifting official responsibility for administrative no-fly decisions from the FBI to the TSA, the government hopes to bring those decisions fully within the scope of a special Federal jurisdictional law, 49 U.S.C. § 46110, which is designed to preclude any effective judicial review of TSA decisions — but which doesn’t apply to decisions (nominally) made by the FBI or other agencies outside the DHS.

This law allows TSA administrative orders to be reviewed only by Courts of Appeal (which have no ability to conduct trials or fact-finding), on the basis of the “administrative record” supplied to the Court of Appeals by the TSA itself.  The Court of Appeals is forbidden to second-guess the TSA’s fact-finding, even if it was made through a secret and one-sided internal process: “Findings of fact by the Secretary, Under Secretary, or Administrator, if supported by substantial evidence, are conclusive.”  As long as there is substantial evidence in the record constructed by the TSA to justify its actions, the Court of Appeals is forbidden to consider the weight of contrary evidence, even if it is also in the record.  And the TSA is free to decide that evidence submitted by anyone on the no-fly list is, for that very reason, not credible.

No-fly cases have been considered by District Courts, and one of them has gone to trial, only because the FBI (as the agency nominally responsible for the inter-agency Terrorist Screening Center) has been declared by both TSA and FBI to be the agency officially responsible for no-fly decisions.  When FBI decisions are challenged by people who claim their rights have been violated, those decisions are reviewed in the normal manner by District Courts that can conduct trials, hear testimony, receive evidence, and make their own findings of fact — without being required to rely exclusively on self-serving submissions by the FBI itself.

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As we’ve been pointing out for years, the right to travel is not just a right under the First Amendment to the US Constitution (“the right of the people… peaceably to assemble”) but a human right guaranteed by an international treaty ratified by the US (“the right to freedom of movement”).

But what good is a “human right” guaranteed by international treaty if there is no independent entity to which you can complain, and which has the authority to enforce your rights?

At a minimum, what’s needed is the ability of people whose human rights have been violated by the US government to seek redress through US courts, and the ability of those courts to order the government to comply with its treaty obligations.

Given the US government’s current interpretation of many human rights treaties as not being “self-effectuating”, that would require legislation by Congress to effectuate those treaties by creating a cause of action for treaty violations and give US courts jurisdiction to hear such complaints.

That’s exactly what the UN Human Rights Committee concluded a year ago, following its periodic review of US implementation of the International Covenant on Civil and Political Rights (ICCPR):

The State party [i.e. the US] should … Taking into account its declaration that provisions of the Covenant are non-self-executing, ensure that effective remedies are available for violations of the Covenant, including those that do not, at the same time, constitute violations of U.S. domestic law, and undertake a review of such areas with a view to proposing to the Congress implementing legislation to fill any legislative gaps.

In the year since this recommendation from the UNHRC, neither the Administration nor any member of Congress has proposed such effectuating legislation for the ICCPR or any other human rights treaty.

So in the meantime, where can you turn if your human rights are violated by the US government?

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John Brennan, the “Naked American Hero” who took off all his clothes at a TSA checkpoint at the Portland, Oregon airport, will finally have his day in a Federal court more than three years later.

Mr. Brennan was (falsely) arrested by Portland city police, acting at the behest of the TSA checkpoint staff, on April 17, 2012.  He was acquitted of criminal charges by a local judge, since nudity as a form of political expression has been held to be protected by Oregon’s state constitution.

But the TSA assessed a $500 administrative fine against Mr. Brennan for “interfering with screening”, notwithstanding both the Oregon court’s finding that his action was form of protected political expression and the fact that he never interfered with anyone at the TSA checkpoint. It was the TSA staff who chose not to search Mr. Brennan’s clothes after he took them off, not to complete his “screening” once they could see that he wasn’t carrying any weapons or explosives, and to shut down the entire checkpoint.

The TSA’s administrative decision to fine Mr. Brennan followed a kangaroo-court administrative hearing (held in a courtroom rented for the day from the US Bankruptcy Court), a decision by a so-called Administrative Law Judge (not actually a judge, but a DHS staff person rented from the US Coast Guard), and an administrative appeal to a TSA decision-maker designated by the head of the agency.

Throughout these administrative proceedings, the TSA and other DHS staff were forbidden to consider the Constitutionality or validity of the TSA’s regulations or actions.  Only after jumping through three years of these hoops is Mr. Brennan entitled to have a real judge of a real court assess whether the TSA acted lawfully or had any authority to impose a fine for actions such as Mr. Brennan’s.

In an effort to frustrate even this belated judicial review, Congress requires that it be conducted by a Federal Circuit Court of Appeals, based on “deference” to the TSA and the TSA-supplied “administrative record” rather than an actual trial or any fact-finding by the Court of Appeals. (Our Freedom of Information Act request for the administrative record of the TSA’s proceedings with respect to Mr. Brennan is still pending and unanswered after almost two years.) But the Court of Appeals can now finally, at this stage, consider Constitutional and other objections to the legality of the TSA’s actions.

On November 14, 2014, Mr. Brennan filed a petition with the 9th Circuit Court of Appeals for that court to review the TSA’s order assessing a $500 fine against Mr. Brennan. The case in the 9th Circuit is John Brennan v. US DHS and TSA, docket number 14-73502.  Mr. Brennan is represented in the 9th Circuit by Michael Rose of Portland, the same attorney who successfully defended Mr. Brennan against the state and local criminal charges.

On March 2, 2015, Mr. Brennan’s attorney filed his brief asking the Court of Appeals to void the TSA fine, making the arguments he wasn’t allowed to make in the TSA administrative proceedings regarding the unconstitutional vagueness and other defects in the TSA’s regulations and actions.  Mr. Brennan’s brief was accompanied by excerpts from the TSA administrative record, although most of that record continues to be improperly withheld from disclosure by the TSA despite our FOIA request.

Following a written response from the DHS and TSA (the government has already asked for, and been granted, an extension of time), and a written reply from Mr. Brennan, the 9th Circuit will decide whether to schedule oral argument or make a decision solely on the basis of the written arguments.

Mr. Brennan is continuing to pay for his own legal representation. There’s more information here about how you can contribute to his legal defense and help spread the word about his case.