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:

Read More →

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.

Last year, we reported on the case of Saadiq Long, an Oklahoma native and U.S. Air Force veteran who was stranded in Qatar for six monthes, unable to return home because for unknown reasons he had been placed on a “no-fly” list, and all airlines serving the U.S. had been forbidden to transport him, on the basis of some secret allegedly-derogatory information provided by some unknown government agency that had “nominated” him for this latest version of the U.S. government’s  “enemies list”.

Eventually, in the face of public hue and cry, the FBI relented (temporarily, it turns out) and allowed Mr. Long to return to Oklahoma to spend Thanksgiving with his critically ill mother.

Happy ending to a sad story? No.

Mr. Long’s attorney, Gadeir Abbas of CAIR, who has led the legal fight against U.S. government “no-fly” orders, has an update this week in an op-ed article in the Oklahoman, the state’s newspaper of record:

Mr. Long has been living and working (for U.S. military contractors among other clients) in Qatar, where his wife and daughter remained while he went back to the U.S. for the holidays. But after letting him come home, the U.S. government has now put him back on the “no-fly” list, and won’t let him leave the country:

What’s most alarming about Saadiq’s ordeal is that the FBI will never have to explain its actions. When it comes to separating Saadiq — and many others — from family via its ever-growing and always secret watch lists, the FBI is judge, jury and executioner. Saadiq hasn’t been indicted, charged or convicted of any crime. And yet the FBI has claimed for itself the power to impose permanent punishment upon Saadiq: life without air travel. If FBI agents can impose this sentence on Saadiq, they can do the same to any of us.