Secret Law – Page 12 – Papers, Please!

Oct 16 2014

“Jetsetting Terrorist” confirms DHS use of NSA intercepts

We’ve been reading the Jetsetting Terrorist blog (highlighted last week by Boing Boing) to see what we can learn from the anonymous author’s chronicles of his experiences traveling on commercial airlines, within the U.S. and internationally, after being convicted of a nonviolent misdemeanor criminal offense the U.S. has since defined as “terrorism”:

Since 2009, I’ve been on the TSA’s “terrorist watch list” [because] years ago I was convicted of an activist-related property crime. The government deemed it “terrorism.” My “weapon of mass destruction” was a small tool purchased at a hardware store for under $30. My crime resulted in a loss of profits to several businesses. No one was injured. And it wasn’t even a felony.

Some of what the Jetsetting Terrorist describes is unsurprising, such as the inconsistency and unpredictable of the TSA’s “There are no rules” operational practices (a/k/a, “We make up the rules as we go along”, or “The rules are whatever we say they are today”). Or the confusion of TSA and airport checkpoint contractor staff, accustomed to carrying out crude profiling on the basis of race, religion, and national origin, when they receive instructions to treat a white-skinned hipster techie U.S. native like the Jetsetting Terrorist as a second-class citizen. We’ve heard many accounts like these from other travelers about the TSA’s real-world Standard Operating Procedures, as distinct from those contained in the secret written manuals for TSA staff and contractors.

Beyond that, several things stand out from our reading of the Jetsetting Terrorist blog:

Anyone could be subjected to the same treatment as the “Jetsetting Terrorist”. Millions of people in the U.S. have been convicted, at some point in their lives, of some nonviolent property crime or other nonviolent misdemeanor. There are no limits to what crimes the government can retroactively define as “terrorism”, and courts have enforced few constraints on what additional burdens, restrictions, and prohibitions can retroactively be imposed — by law or by extrajudicial administrative fiat — on anyone who has ever in their life been convicted of any crime. Once someone has a criminal record, they are considered to “deserve” whatever they later get when additional administrative infirmities are later piled on to their long-ago-completed judicially-imposed sentence. And it’s not just people convicted of crimes later defined as “terrorism”. Where will it end? “First they came for the terrorists. Then they came for the drug dealers…. Then they came for you and me.”
So-called “watchlists” are really blacklists. The word “watchlist” is an Orwellian euphemism which the government uses to minimize its infringement of the rights of people on these lists. Properly speaking, a “watchlist” implies a list used to target surveillance, and the consequences of being on a “watchlist” are limited to being watched, i.e. surveilled. A bad thing, but very difference from the consequences of being on a blacklist, on the basis of which the government actively interferes with one’s movements, lays hands on one’s body (calling genital groping by another minimizing euphemism, “patdown”), and rips open one’s luggage to paw through one’s possessions.
DHS pre-crime profiling is not binary, and can lead to many levels of consequences. Most travelers naively assume that unless you are “on the no-fly list”, there are only three levels of pre-crime “risk scores” and consequent levels of intrusiveness of DHS action against you at airports: the TSA Pre-Check line, the “normal” (in the post-9/11 sense of “normal”) screening line, and the “secondary screening” line for those “selectees” who get “SSSS” printed on their boarding passes. But as the experiences reported by the Jetsetting Terrorist remind us, not all “selecteees” are selected for like treatment. As was made public in a government filing in the first no-fly trial last year, each entry on the “selectee” list is assigned a numeric “handling code”. The range of handling codes and their meanings remains secret, but while some “selectees” merely get the full monty (“enhanced patdown”), others like the Jetsetting Terrorist are prevented from proceeding through TSA checkpoints until the checkpoint staff phone the FBI to report their itinerary and get permission for them to travel. In the case of the Jetsetting Terrorist, everyone on the same plane is subjected to an additional guilt-by-proximity ID document check and luggage inspection at the gate, at the entrance to the jetway.
DHS components are among the “customers” for NSA electronic surveillance. On a recent international trip, the Jetsetting Terrorist spent time, while he was abroad, with a friend from the US: “My friend went back one day before me. We didn’t arrive together. We didn’t leave together. We don’t live anywhere near each other. Separate itineraries, everything. But a few hours before I was to leave for the airport, I get an email. Customs got her. Details were sparse, but she said they’d detained her for over an hour, asked her a thousand questions, took her computer in the back room, and asked her about me. A lot about me. What’s most interesting: Somehow, they knew we were traveling together. This could not be gleaned from airline records. In fact, it could only have been learned of from electronic surveillance.” Assuming these facts are accurately reported, we agree. (The Jetsetting Terrorist blog is anonymous and unverifiable. But we have no reason to doubt its legitimacy.) This isn’t the first report of DHS employees questioning a US citizen about information that could only have been obtained from surveillance of electronic communications: that’s part of the basis for an ongoing lawsuit in federal court in Indiana. We continue to believe, as we said when we reported on that case earlier this year, that it’s more likely that the DHS is one of, and possibly the most frequent, “customer” and user of information obtained from the illegal NSA electronic communications dragnet than that the DHS is running its own parallel illegal surveillance scheme on the same scale.

The Jetsetting Terrorist is looking for help finding a way to film and/or record his interactions with the TSA, in spite of being separate from his belongings while he is being searched and interrogated. Since he plans to distribute these recordings publicly, they would be protected from search (as would his other work product documents and data) by the federal Privacy Protection Act, 42 USC 2000aa. Most journalists aren’t aware of this law. But it has important implications at airports, and protects anyone with an intent to distribute information publicly — not just full-time professional journalists.

Oct 14 2014

U.S. citizen sues the State Department for a passport

A Yemeni-American U.S. citizen sued the U.S. State Department today, asking a federal court in Michigan, where he lives, to order the State Department to issue him a U.S. passport.

Ahmed Nagi was naturalized as a U.S. citizen twenty years ago. In May of 2013, after his previous U.S. passport expired, Mr. Nagi applied to renew his passport. He went in person to the State Department’s Passport Office in Detroit, and paid the $60 extra fee for “expedited” passport renewal service.

Normally, a U.S. citizen who applies in person at a Passport Office on an expedited basis — especially if they have been issued a U.S. passport previously, and are applying for a renewal rather than a first-time passport — can pick up their new passport within a couple of days, even the same day if they have evidence of imminent planned international travel.

Mr. Nagi, however, is still waiting for a new passport, sixteen months after he submitted his application. In response to repeated inquiries, Mr. Nasgi and his lawyers have been told only that his passport application is still “pending”. The State Department has used the impossible-to-complete “long form” as a pretext to hold up processing of some disfavored passport applications, but hasn’t asked Mr. Nagi for any additional information or told him anything about why his application hasn’t been approved.

In the meantime, Mr. Nagi is legally prohibited from leaving the USA without a passport.

The U.S. government appears to have decided that there is no legitimate reason for any U.S. citizen to visit Yemen, whether as a tourist or to visit friends or relatives. In a blatant case of discrimination on the basis of national origin, all U.S. citizens of Yemeni birth or ancestry are being treated as presumptively terrorists and subject to de facto travel restrictions, even if they haven’t individually been placed on any U.S. government blacklists. Hundreds of U.S. citizens are currently stranded in Yemen, unable to leave Yemen or return to the U.S., because the U.S. Embassy in Sana’a has been systematically seizing the passports of any Yemeni-Americans who go to the embassy to request consular services as U.S. citizens.

According to one of Mr. Nagi’s attorneys, Lena Masri of the Council on American-Islamic Relations, “The federal government has routinely delayed the processing of passport applications for Muslims of Yemeni origin for an indefinite period of time.” By keeping passport applicants in indefinite limbo, the State Department hopes to exercise a “pocket veto” of passport issuance and international travel, without issuing formal decisions denying passport applications that would be subject to judicial review. “This lawsuit will challenge the federal government’s unchecked practice of denying these individuals their constitutionally-protected right to travel without affording them their right to due process of law.”

Sep 25 2014

11th Circuit Court of Appeals panel kowtows to TSA

By a vote of two judges to one, a panel of the 11th Circuit Court of Appeals has declined to consider a petition by Jonathan Corbett for review of the TSA’s use of virtual strip search machines and “enhanced patdowns” (genital groping), and has opined that if the court were to consider Mr. Corbett’s petition, it would deny it.

If that sounds irregular, it should. Normally, once a court has found a reason it doesn’t need to decide a case on its “merits”, but can resolve it on procedural or jurisdictional grounds, judicial economy dictates that the court won’t issue any opinion on issues it doesn’t have to reach.

In this case, the two judges in the panel majority went out of their way to erect as many barriers as possible to future court challenges to TSA actions, in contravention of normal principles of appellate adjudication and over a cogent dissent, on exactly these grounds, by the third member of the panel.

The ruling on the “merits” of the petition, while bad, is not unprecedented: Every other petition for Court of Appeals review of the TSA’s virtual strip-search practices has already been dismissed. That’s largely because Congress has directed the Courts of Appeals to limit their “review” of TSA orders to the “administrative record” supporting the TSA’s actions, as provided to the court by the TSA itself, and to treat any “findings of fact” by the TSA, “if supported by substantial evidence” (and even if controverted by more persuasive evidence) as “conclusive”.

Conclusory declarations by TSA employees, not subject to cross-examination and allegedly based on secrets not in the record (“if you knew the secrets we know but can’t reveal, you’d agree with us”) are almost always deemed sufficient to constitute “substantial” evidence for this purpose.

In other words, the TSA gets to tell the Court of Appeals which evidence to consider, and what factual conclusion to draw from it. Given that the TSA is allowed to make up the facts to suit its own interests, and submit them to the court in secret, it’s scarcely surprising that the decisions made by the Courts of Appeal on the basis of those “conclusive” factual claims by the TSA are almost invariably in the TSA’s favor.

If you think that’s unjust, ask Congress to change this law and support those who argue to the courts, especially the Supreme Court, that this law is unconstitutional.

Sep 22 2014

GAO audit confirms TSA shift to pre-crime profiling of all air travelers

A Congressional hearing last week on the so-called “Secure Flight” system for “screening” domestic air travelers confirmed that the TSA has completed a shift from blacklist and whitelist matching to a comprehensive real-time pre-crime profiling system that assigns each air traveler a “risk assessment” score on the four-step scale we’ve previously described and which is illustrated above in the latest GAO report.

Redacted versions of three audit reports on Secure Flight by the Government Accountability Office (1, 2, 3) were made public in conjunction with GAO testimony at the hearing. According to one of those reports, “Secure Flight” started out as a blacklist and whitelist matching system:

Since implementation began in January 2009, the Secure Flight system has identified high-risk passengers by matching SFPD [against the No Fly List and the Selectee List, subsets of the Terrorist Screening Database (TSDB), the U.S. government’s consolidated watchlist of known or suspected terrorists maintained by the Terrorist Screening Center, a multiagency organization administered by the Federal Bureau of Investigation (FBI)…. To carry out this matching, the Secure Flight system conducts automated matching of passenger and watchlist data to identify a pool of passengers who are potential matches to the No Fly and Selectee Lists. Next, the system compares all potential matches against the TSA Cleared List, a list of individuals who have applied to, and been cleared through, the DHS redress process.

But that’s not how it works any more. According to the same GAO report:

Since January 2009, the Secure Flight program has changed from one that identifies high-risk passengers by matching them against the No Fly and Selectee Lists to one that assigns passengers a risk category: high risk, low risk, or unknown risk. Specifically, Secure Flight now identifies passengers as high risk if they are matched to watchlists of known or suspected terrorists or other lists developed using certain high-risk criteria, as low risk if they are deemed eligible for expedited screening through TSA Pre-Check — a 2011 initiative to preapprove passengers for expedited screening — or through the application of low-risk rules, and as unknown risk if they do not fall within the other two risk categories. To separate passengers into these risk categories, TSA utilizes lists in addition to the No Fly and Selectee Lists, and TSA has adapted the Secure Flight system to perform risk assessments, a new system functionality that is distinct from both watchlist matching and matching against lists of known travelers.

We’ve said from the start that Secure Flight would not be limited to “list matching” and would assign risk scores to all travelers. Now that’s been confirmed by GAO auditors. When the TSA talks about “risk-based screening”, what they mean is “pre-crime profiling” of all air travelers — part of a larger pattern of “predictive” pre-crime policing through surveillance and profiling.

The diagram at the top of this article shows what the GAO says the current “Secure Flight” profiling process, and its consequences, look like. Note the references to “risk assessments” and “rules-based lists”, although in fact these are real-time scoring systems and there are no publicly-disclosed “rules”.

Sep 19 2014

EFF: “Secret Law is Not Law”

Our friend Cindy Cohn, legal director for the Electronic Frontier Foundation, has an important article this week on a theme that’s long been central to our work: “Secret Law is Not Law“:

One of the many ways that the NSA’s mass surveillance violates the human rights of both Americans and others around the world is that it teeters on a huge pile of secret law.

Let’s be clear. Under international human rights law, secret “law” doesn’t even qualify as “law” at all….

The Human Rights Committee confirms that law is only law if people know it exists and can act based on that knowledge. Article 19 of the ICCPR, protecting the freedoms of opinion and expression, requires that “to be characterized as a “law,” [a law] must be formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly and it must be made accessible to the public….”

This is a basic and old legal requirement: it can be found in all of the founding human rights documents…. It avoids the Kafkaesque situations in which people, like Joseph K in The Trial and the thousands of people on the secret No Fly Lists, cannot figure out what they did that resulted in government scrutiny, much less clear their names….

Just how far has the US strayed from this basic principle in its mass surveillance practices? Very far.

Read the whole article here.

The Constitutionality of secret law is precisely the issue the Supreme Court declined to consider in 2006 in Gilmore v. Gonzales. EFF’s longstanding opposition to secret law is clearly visible in the brief submitted by EFF and other friends of the court in support of the petition for certiorari in that case.

EFF’s latest commentary on this issue is part of a group of articles by a coalition human rights organizations around the world on the first anniversary of the issuance of a joint statement of principles on the application of international human rights law to mass surveillance. EFF and other members of this coalition joined us in Geneva this March at the UN Human Rights Committee’s review of US (non)compliance with the ICCPR.

The coalition’s principles of necessity and proportionality refer explicitly to communications surveillance. But as we’ve pointed out before, the same principles apply to metadata about the movement of our bodies (i.e. travel metadata) as to metadata about the movement of our messages. And as the comments from Ms. Cohn of EFF about the No-Fly List quoted above make clear, the same principles also apply to government decisions based, in whole or in part, on the fruits of that metadata surveillance.

We agree wholeheartedly with EFF: Secret law is not “law”.

Sep 08 2014

Congress investigates TSA treatment of whistleblowers

Former TSA “Air Marshall” Robert MacLean will be one of the witnesses testifying at a hearing tomorrow before the House Oversight Committee, “Examining the Administration’s Treatment of Whistleblowers“.

As we’ve previously reported, Mr. Maclean is the respondent in a case to be argued this term before the US Supreme Court, DHS v. MacLean. Mr. Maclean was fired for disclosing “secret” but unclassified “Sensitive Security Information” (SSI) that was only designated as SSI by the TSA three years after Mr. Maclean shared it with the DHS Office of the Inspector General, members of Congress, and journalists.

[CORRECTION: We apologize for incorrectly referring to Mr. MacLean as the “petitioner” in the original version of this article, and thank Mr. MacLean for the comment correcting our error. The Court of Appeals ruled in Mr. MacLean’s favor, and it was the government that petitioned the Supreme Court to review that decision .]

DHS regulations prohibit the designation of information as SSI to conceal official misconduct, but that appears to have been a common practice, and to be ongoing (although under challenge) in other cases.

The House Oversight Committee has sometimes been accused of partisan witch-hunting. That doesn’t appear to be the case with this issue, however. A recent bipartisan report by the committee staff — itself the result of whistleblowing by the former head of the TSA’s Office of SSI – focuses on the political use of SSI designation decisions, in Mr. Maclean’s case in particular, to block the release of information that might embarrass the TSA, regardless of whether it fits the definition SSI in the law and regulations.

Sep 02 2014

Government asks for “do-overs” and delays in no-fly lawsuits

Faced with a series of Federal court rulings upholding challenges to “no-fly” orders, or allowing them to proceed toward trial, the US government agencies responsible for “no-fly” orders have responded by pretending that they don’t understand what the courts have ordered them to do.

Instead of complying with court orders, the responsible agencies are asking for months of additional time.

In one case, the request for delay is to get “clarification” of a straightforward court order — and to prepare and submit a different set of pleadings than the exhibits and summaries of testimony the court had demanded.

In another case, the government has asked the court — which has already found that the defendants’ secret no-fly decision-making process unconstitutionally denied the plaintiffs due process of law — to remand the case to the defendants themselves, and give them six months to devise and subject the plaintiffs to yet another extra-judicial “review” of the no-fly list by the defendants, before the court even considers whether that (yet to be devised) new-and-improved administrative no-fly listing and internal kangaroo-court “review” system would be Constitutional.

The first court ruling that the no-fly system or a specific no-fly decision was unconstitutional came in January 2014, following the trial last December in San Francisco in Ibrahim v. DHS. But Dr. Rahinah Ibrahim is not a US citizen, the US government won’t give her a visa to return to the US, and under US law visa denials are generally not subject to judicial review. So Judge William Alsup’s ruling in that case has had little practical effect either on Dr. Ibrahim or on no-fly listing and decision-making practices affecting other would-be travelers.

Two other pending cases, however, involve US citizens (and in one of the cases some permanent residents or green-card holders as well) who would be able to travel freely if they weren’t on the no-fly list.

Aug 21 2014

FOIA appeals reveal problems with PNR data

We’ve noticed a disturbing pattern in how the DHS, and specifically US Customs and Border Protection (CBP), has responded to people who have asked the DHS for its files about themselves.

Eventually — typically months later than the statutory deadline for responding to a FOIA request — CBP has sent the requester a file of information about their international travel, including a log of entries, exits, and borders crossings.

But even when the requester has explicitly asked for the Passenger Name Record (PNR) data that CBP has obtained from their airline reservations, or has asked CBP for “all” its records about their travel, or for all data about themselves from the CBP “Automated Targeting System” (most of which consist of CBP copies of PNRs), CBP has completely omitted PNR data — or any mention of it — from its response.

People who don’t work in the air travel industry typically don’t know what PNRs look like. So it isn’t obvious to most recipients of these incomplete responses that what they’ve been given doesn’t include any PNR data. Only when these people showed us copies of the responses they received from CBP have we been able to point out, or confirm, that PNR data was completely absent from the initial CBP response.

When these people have filed administrative appeals, specifically pointing out that their requests included PNR data, CBP has responded to their appeals by sending them redacted copies of CBPs mirror archive of airline PNRs, as contained in ATS. But there’s been no apology, and explanation in any of these responses to appeals of why the PNR data wasn’t included in the initial response. It seems likely that CBP didn’t even bother to search its PNR database in response to the initial requests, either out of gross negligence, gross incompetence, malice, and/or bad faith. (CBP has refused to disclose how PNR data and other information in ATS is indexed, queried, or retrieved. Even though the Privacy Act requires this information to be published in the Federal Register, the judge hearing our lawsuit ruled that it was exempt from disclosure.)

We’ve seen this pattern even in responses to requests from journalist and public figures which, according to DHS policy, would have been subject to pre-release review and approval by the DHS “front office”. The DHS front office has been intimately involved in international disputes related to PNR data, and is fully aware of the existence of this component of DHS dossiers about innocent travelers. So the incomplete responses to FOIA requests can’t be blamed on low-level staff or a lack of oversight or awareness by senior officials.

One of those high-profile cases was that of Cyrus Farivar, Senior Business Editor at Ars Technica. As Mr. Farivar reported earlier this year, CBP’s initial response included no PNR data, even though he specifically included PNR data in his request. After Mr. Farivar appealed, CBP gave him the PNR data he had originally requested.

There was nothing Mr. Farivar’s DHS file that we haven’t seen in other DHS copies of PNRs. But his report about what he received highlights some of the problems with the contents of these DHS records.

Aug 19 2014

Sai v. TSA: A case study in TSA secrecy

Time and time again, the TSA has acted as though its middle name was “secrecy” rather than “security”.

Case in point: Sai v. TSA.

There’s a lot at issue in this case, but here are some of the problems with the TSA that it has exposed:

Sai poses no threat to aviation security. He has an unusual but recognized medical condition, attested to by documentation from his doctor that he carries when he travels, for which he needs ready access to liquids. The TSA is required by law to accommodate such medical disabilities, as it easily could. TSA press releases claim that travelers are allowed to bring medically necessary liquids through TSA checkponts in any quantity.

But TSA employees at airport checkpoints at Logan Airport in Boston and the TSA contractors who staff the checkpoints at San Francisco International Airport have, among other improper actions, seized Sai’s medical liquids, denied him access to his medical liquids while detaining him, and refused to allow him to pass through checkpoints or travel by air unless he abandoned his medical liquids.

While detaining Sai, TSA employees and contractors have conducted searches unrelated to weapons or explosives (but directly related to activities protected by the First Amendment), including reading through and copying documents Sai was carrying.

The TSA has never tried to claim that any of these actions were justified by “security” concerns. Instead, the TSA has responded to Sai’s requests for information, administrative complaints, and eventual federal lawsuit solely on the basis of secrecy, when it has responded at all, arguing that it isn’t required to divulge anything about what it has done, why, or whether it is justified.

The TSA claims to practice “layered security,” but Sai’s saga shows how the TSA actually practices “layered secrecy” to shield its activities from public and judicial accountability.

Aug 14 2014

Lawsuit challenges “watchlisting” of Michigan Muslims

A lawsuit filed today in Federal District Court in Michigan challenges “the widespread government practice of placing names on watch lists without providing individuals with any notice of the factual basis for their placement and without offering a meaningful opportunity to contest the designation.”

According to the complaint:

This lawsuit is an expression of anger grounded in law. Our federal government is imposing an injustice of historic proportions upon the Americans who have filed this action, as well as thousands of others. Through extra-judicial and secret means, the federal government is ensnaring individuals into an invisible web of consequences that are imposed indefinitely and without recourse as a result of the shockingly large federal watch lists that now include hundreds of thousands of individuals.

So far as we can tell, this is the first lawsuit informed by the publication last month of the US government’s “Watchlisting Guidance“, and last week of a breakdown of who has been “watchlisted”.

These leaked documents, published by The Intercept, make clear that names can be added to “terrorism” watchlists without any individualized basis for suspicion. They also confirmed the overwhelming focus of “terrorist” watchlisting on Arab and Muslim Americans. The leaked documents don’t explicitly categorize watchlist entries by religion or ethnicity, but the correlation is strongly suggested by the fact that more people in Dearborn, Michigan, have been watchlisted than people in any other U.S. city except New York. Dearborn has only 96,000 people, but 40% of them — the highest percentage of any U.S. city — are of Arab descent. Not surprisingly in light of this pattern of watchlisting, the Council on American Islamic Relations (CAIR) has played a leading role in challenges to watchlisting practices and consequences.

Papers, Please!

The Identity Project