Former Secretary of Homeland Security Chertoff said repeatedly in public speeches that government “no-fly” orders should not be subject to judicial review, and that has remained the position of the Obama Administration whenever the issue has been raised in lawsuits by people who have been prevented from flying.

Rather than defend its decisions in the courts, the U.S. government has argued that it doesn’t has to do so.

The government’s first line of evasive of judicial review has been to argue that the courts lack jurisdiction to hear such cases, and/or that the plaintiffs have no “standing” to sue.

Some plaintiffs have been removed from the “no-fly” list just before their cases were to be heard, so that the government could argue that their complaints had become “moot” (despite the very real risk that they could be put back on the “no-fly” list the next day, or in the middle of their next trip abroad).

Should those arguments fail, the government could always invoke its “nuclear option”: a claim that the case could not proceed without disclosing “state secrets”.

That’s what the government did earlier this year in the case of Rahinah Ibrahim, after the 9th Circuit Court of Appeals twice rejected government appeals of the district court’s refusal to dismiss the case on grounds of jurisdiction or standing. (The case has drawn notice both in law review and international press commentary.)

But unlike most judges who have accepted “state secrets” claims uncritically, Judge William Alsup of the U.S. District Court for the Northern District of California has taken seriously his obligation, once such a claim is properly asserted by the government, to “independently determine whether the information is privileged“:

According to our court of appeals: “The court must sustain a claim of privilege when it is satisfied, from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose . . . matters which, in the interest of national security, should not be divulged. If this standard is met, the evidence is absolutely privileged….

After a careful review of the classified materials by the Court, this order concludes that a few documents could potentially be produced….  Defendants are ordered to show cause as to why the documents should not be produced.

In another order (also containing a useful summary of the proceedings to date) made public at the same time as this order to show cause, Judge Alsup granted portions of Ms. Ibrahim’s motions to compel the government to disclose documents requested on discovery, respond to interrogatories, and produce witnesses from the Department of State, the FBI, the National Counterterrorism Center, and the Terrorist Screening Center to be deposed by Ms. Ibrahim’s lawyers. While these depositions, if they happen, are likely to be greatly impeded by restrictions on questioning about “privileged” material, they would be the first time “no-fly” decision-makers would ever have been questioned under oath regarding their actions.

In his latest orders, Judge Alsup reminded the government forcefully that it is too late to make this case go away by removing any watchlist entries pertaining to Ms. Ibrahim:

Regarding the government’s challenge that plaintiff would not have standing were her name removed from the No-Fly (and Selectee) lists, the government has already lost this argument — twice.  Our court of appeals held:  “[e]ven if Ibrahim’s injury were limited to her inability to enter the United States, she would still have standing. . . . If Ibrahim’s name were removed from the TSDB, and thereby removed from the Consular Lookout and Support System, the State Department would be more likely to grant her a visa, given that it has relied on her alleged connection to terrorism as the basis for revoking her visa and denying her application for a new one.” … A prior order in this action likewise held: “Even if it turns out that she is not on the list anymore, she is nonetheless entitled to maintain this action to root out the residual effects and echoes in the various agencies resulting from the original erroneous listing.”

Plaintiff is entitled to discovery related to these issues and the government is the sole source of this information. To the extent that the documents she seeks reveal law enforcement procedures, the risks of disclosure are outweighed by the relevance of the information to plaintiff’s claims.

Judge Alsup seems to be losing patience with the government’s foot-dragging:

The government is ORDERED to produce updated interrogatory and request for admission responses in light of the Court’s recent discovery orders by MAY 2 AT NOON. Vague, dilatory, and otherwise uncooperative responses that lead to a successful motion to compel may result in an award of attorney’s fees, preclusion, and/or other appropriate sanction.

There’s also an intriguing passage in Judge Alsop’s latest order that might be a clue that the government’s mis-characterization of Ms. Ibrahim as a would-be terrorist was based, in whole or in part, on computerized facial image matching:

There are also a few documents and/or pages within documents that demonstrate the results of facial recognition software. These pages show matches between the plaintiff’s photograph and other photographs in government databases.

Unfortunately, we won’t be learning anything more about this. After reviewing these documents in camera (without showing them to Ms. Ibrahim’s lawyers), Judge Alsup found for unspecified reasons that:

These pages are not relevant to plaintiff’s claims and they tend to reveal the efficacy of government screening procedures. The government may redact any such pages from its productions.

Judge Alsup has ordered the government to deliver specified documents to Ms. Ibrahim’s lawyers, or file yet a third appeal of the same case to the 9th Circuit Court of Appeals, by May 2, 2013.

Last month, as we’ve reported, we met with the U.N. Human Rights Committee in Geneva to discuss our recommendations to the Human Rights Committee of issues to raise with the U.S. government during the Committee’s review this year of U.S. implementation of the International Covenant on Civil and Political Rights (ICCPR), an international treaty which guarantees, inter alia, the right to freedom of movement.

The Human Rights Committee has now posted a preliminary version of its List of issues to be taken up in connection with the consideration of the fourth periodic report of the United States of America. (This version is preliminary and unofficial only because the original English text has not yet been translated into all of the six official U.N. languages.)

The U.S. government is expected to respond to this short list of issues and questions before its appearance before the Committee in October 2013. But the Committee’s short list of issues is not limiting, and questions about other issues may be asked during the October session. That’s especially likely to be the case for issues of concern to members of the Committee who were not on the sub-committee that drafted the list of issues related ot the USA.

The specific U.S. violations of the right to freedom of movement raised in our submissions were not included on the Committee’s short list of issues.  But the Committee did raise, and ask the Committee to respond to, the issue we raised (and which we uncovered through our FOIA requests) of US failure to implement Executive Order 13107 or authorize U.S. courts to review complaints of human rights violations.

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On March 24th, 20 months after being ordered to do so by a Federal judge, the TSA quietly published a notice in the Federal Register “inviting” the public (that’s you!) to submit comments concering its use of ongoing use of virtual strip-search machines to determine who to subject to “enhanced” groping by checkpoint staff.

Does the TSA really want there to be a public written record of what you think of what it does?

You be the judge. Here’s what has happened.

Obviously, not many people read the entirety of the Federal Register every day. The TSA waited almost two weeks before publishing a notice about the public comment period on its official blog on April 4th.  The TSA News Blog has a copy of that original TSA blog post.

Perhaps realizing that, given a chance, the public might actually tell the TSA what we think, the TSA deleted its blog post.

Then the TSA asked Google to delete its cached copy. Google complied, although government publications are in the public domain so there was no issue of copyright infringement or any other legal basis for the government to require Google to go along with the TSA’s rewriting of its Web history.

Flooded with questions about its attempt to expunge its blog post, and why it wasn’t publicizing the “public notice and comment”, the TSA put up another less informative blog post at 7:39 p.m. Washington time today, on a Friday after the close of business and after most daily news deadlines.

Unlike the original deleted TSA blog post, which at least had one link to the correct docket, the entry published today doesn’t include any direct link to the Notice of Proposed Rulemaking, the docket, the folder containing the supplementary documents and the comments submitted to date, or the page with the form to submit comments. Today’s TSA blog entry doesn’t even mention the name or URL of the domain on which the notice and comment form appear (Regulations.gov) or the docket ID number (TSA-2013-0004) that you have to search for to find any of this information if you don’t have a direct link to the correct docket.

All of which just goes to show how much the TSA fears having members of the public discover this opportunity to put our opinion of the TSA on the public record.

So please, tell the TSA (and the members of Congress, judges, etc. who will later be reading and relying on this record) what you think of its practices:

• Tell the TSA that travel is a right, not a privilege to be granted or denied by the government.
• Tell the TSA that searches or other conditions required for the exercise of your right to travel are subject to “strict scrutiny”. The burden of proof is on the TSA to show that they are actually effective for a permissible purpose (not just e.g. to catch drugs, which is not supposed to be the TSA’s job) and that they are the least restrictive alternative that will serve that purpose.
• Tell the TSA how much it has cost you if you haven’t flown because you find the virtual strip-searches and/or the groping by checkpoint staff intolerable and/or traumatizing.
• Tell the TSA that its current and proposed “rules” are unconstitutionally vague. You can’t tell what is and isn’t prohibited, or what is and isn’t forbidden, at TSA checkpoints. If there are to be any requirements or prohibitions on what you can and can’t do, the TSA needs to spell them out, publicly, so that you don’t have to get arrested to find out whether something is against the law or not.

You can get more ideas from this discussion we were part of last week on C-SPAN, and our previous article about the TSA’s notice and request for comment.

Don’t be put off by the long form. The only field on the comment form that is actually required appears to be your comment itself. You can type in the form, or attach longer comments as a file.

You can also submit comments by e-mail (to Chawanna.Carrington@tsa.dhs.gov), postal mail (to Chawanna Carrington, Project Manager, Passenger Screening Program, Office of Security Capabilities, Transportation Security Administration, 701 South 12th Street, Arlington, VA 20598-6016) , or fax (to 571-227-1931).

The deadline to submit comments is June 24, 2013.

The lawsuit by the Electronic Privacy Information Center (EPIC) which has forced the TSA to allow public “comment” on TSA use of “virtual strip-search machines” (on the basis of a “petition for rulemaking” originally submitted years ago by groups including the Identity Project) is only one of the cases by individuals and organizations seeking to have the TSA’s “screening” practices reviewed by the courts.

Unfortunately, the TSA has still succeeded in avoiding any meaningful judicial review of its actions.

That seems likely to be the outcome of the latest TSA cases to reach U.S. Circuit Courts of Appeals:

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When last we wrote about Saadiq Long — an Oklahoma native, U.S. citizen, and Air Force veteran — he had been sentenced by the U.S. government, without judge or jury, to life without air travel.

First he was prevented from returning to the U.S. to visit his ailing mother.

Then he was prevented from returning to his wife, child, and job in Qatar.

Why? He doesn’t know, and the U.S. government won’t say.  Airlines refused to allow him to check in for any flights to, from, within, or overflying the U.S., so he infers that the DHS has put him on a “no-fly” lost. But as usual, the U.S. government refuses to confirm or deny any such listing or no-fly order, much less to explain the basis (if any) for it.

Now Mr. Long has made it back to Qatar from Oklahoma, the long way. According to The Oklahomn:

During a telephone interview Friday, Saadiq Long … said he took a bus from Oklahoma City to Mexico, then boarded flights in three different countries to return to Qatar….

“I didn’t have any other choice after the FBI refused to take me off the ‘no-fly’ list,” Long said.

“I have my family here. I have a job here. I had to get back.”

Mr. Long wouldn’t have been able to take a direct flight from Mexico to Europe. Those flights pass through U.S. airspace over Florida. Flights between Mexico and Barcelona and (repeatedly) Paris, for example, have been turned back or diverted when the U.S. found out that they were unwittingly carrying passengers on the U.S. no-fly list.

Most likely Mr. Long had to fly from Mexico to someplace much further southeast such as Buenos Aires, Sao Paulo, or Rio de Janiero; from there to Europe or Dubai; and from there to Qatar.  Or maybe he got really lucky, and got on a Qatar Airways direct flight from Sao Paulo.  But it’s still likely to have taken him days of extra travel time and thousands of dollars extra in airfare, compared to, say, a nonstop flight from Houston to Doha.

Mr. Long’s case is among the violations of the right to freedom of movement which we will be raising with the U.N. Human Rights Committee later this month in Geneva, in preparation for the Committee’s periodic review later this year of U.S. implementation of the International Covenant on Civil and Political Rights.