In another depressingly familiar episode in an ongoing saga of de facto banishment of US citizens from their own country, New York City native Samir Suljovic has been trapped in immigration limbo in Frankfurt since October 1st, following a visit to some of his relatives in Montenegro, because of a no-fly order from the DHS forbidding any airline to allow him to board a flight home to the USA.

What’s noteworthy in Mr. Suljovic’s case — other than the persistence of the DHS in these flagrant violations of the right of US citizens to return to their home country — is that he appears to be the same person who got some publicity two years ago when he sued a New York hotel for refusing to hire him unless he shaved off his beard, which he argued was an expression of his religious belief as a Muslim.

Based on what was said in the press, Mr. Suljovic would appear to have had a good case against the hotel. There’s plenty of case law about discrimination against people with religiously-required beards, mainly involving Sikhs and orthodox Jews, and his arguments were far from novel or extreme.

But in other cases, notably that of Julia Shearson, there are indications that DHS designations of “suspected terrorists” have been based on press reports of civil rights activism by Muslims.

The secrecy of the administrative “no-fly” decision-making process leaves us to wonder whether Mr. Suljovic, like Ms. Shearson, was singled out by the DHS for restriction of his right to travel because he stood up, publicly, for his rights as a Muslim.

If no-fly injunctions were issued, as they should be, by judges, following adversary fact-finding proceedings in which the burden of proof is on those who advocate restrictions on the right to travel, we wouldn’t have to wonder what (if any) evidence they were based on, or whether they were being used for invidious discrimination against particular religions or political activists.

Last Saturday, Arijit Guha, a Ph.D. student at Arizona State University trying to fly back from Buffalo to Phoenix with his wife after a family funeral, was kept off a Delta Air Lines flight because …  well, as usual in such cases, we don’t know exactly why.

You can read Arijit’s story in his own words here. At first, a Delta supervisor objected to the parody t-shirt (with a design by Cory Doctorow originally published on BoingBoing) that Arijit was wearing.

After Arijit changed his t-shirt (and after he was interrogated, searched, and subjected to racist and xenophobic comments by multiple TSA staff and local police), “the Delta supervisor informed us the pilot had decided, regardless of the outcome of the multiple TSA screenings and my willingness to change shirts, that due to the discomfort my shirt has caused, my wife and I would not be allowed to board the aircraft. Passengers on the plane supposedly felt uncomfortable with my very presence on the flight. And the Delta manager went out of his way to point out that he wholeheartedly agreed with the pilot’s decision.”

If you ever find yourself in a similar situation, what are your rights?

As long as you’ve paid for a ticket and complied with all valid rules in the airline’s published tariff, you have a right to travel. That’s what it means for an airline to be licensed as a “common carrier”.

Your right to travel is guaranteed by, in ascending order of precedence, Federal law, the First Amendment to the U.S. Constitution, and international human rights treaties: Read More →

For the second time this year, the 9th Circuit Court of Appeals has rejected jurisdictional and procedural challenges and claims of immunity, and remanded a case challenging “no-fly” orders for further proceedings on the merits of the plaintiff’s claims that their rights were violated by being prevented from flying.

The decision last week in Latif v. Holder is complex and technical. There’s still no certainty that the case will make it to trial, or that any court will ever review the legality of the government’s secret “no-fly” orders to airlines preventing them transporting the 15 plaintiffs (all US citizens or green card holders) to or from the US or through US airspace.

But as in the decision of another panel of the same court in Ibrahim v. DHS this February, the 9th Circuit was unwilling to dismiss the claims of travelers grounded by the government without any substantive hearing on the basis for their inclusion on the “no-fly” list. And this time the court went further to reject the government’s attempt to force grounded travelers to exhaust their “remedies” through the TSA’s “Traveler Redress Inquiry Program”, a charade in which an “inquiry” is “resolved” (after an indefinite amount of time) without the complainant ever finding out anything about why they have been prevented from flying, having any chance to rebut the evidence (if any) against them, or knowing what, if any, decision has been made.

According to the latest, unanimous decision by a panel of three 9th-Circuit judges:

At oral argument, the government was stymied by what we considered a relatively straightforward question: what should United States citizens and legal permanent residents do if they believe they have been wrongly included on the No-Fly List? … Today, we take another step toward providing an answer.

The Court of Appeals also noted the issue of banishment from the US by no-fly order, but relegated it to a footnote:

A few of the plaintiffs were allegedly stranded abroad at the time this lawsuit was originally filed, but all have now been granted “one-time waivers” to return home.

To date, despite these and other lawsuits, neither the general legality of secret, standardless, administrative no-fly orders, nor the validity or substantive basis for any individual no-fly order, has been reviewed on its merits by any US court.  We’ll see if that changes in the wake of these decisions.

The ongoing saga of attempted banishment of US citizens by their own government, through (secret, standardless, extra-judicial) administrative no-fly orders issued to airlines while those citizens are abroad, continues with two recent cases of San Diego college and university students.

In June, Keven Iraniha was denied boarding for a flight on which he held a ticket from Costa Rica to the USA, apparently (although of course US authorities would neither confirm nor deny this) because the US government had, for some unknown reason, put his name on a no-fly list.

Mr. Iraniha, a California native who was born and raised in the US and who had received his undergraduate degree from San Diego State University, was attempting to return with his family from his graduation  from a masters program in International Law and the Settlement of Disputes at the University of Peace established by international treaty under United Nations auspices in San Jose, Costa Rica.

As with other US citizens recently made the subject of no-fly orders to airlines, such as Yonas Fikre, the US government’s goal may have been primarily to pressure Mr. Iraniha to become an FBI informer, as a precondition to giving him “permission” to return to his country. After being denied passage home, he was questioned by the FBI about his recent travels including his visits to Iran, India, and Egypt.

Is international travel now considered inherently suspicious by the US government?

Unable to find out why all airlines serving the US had been forbidden to transport him home, Mr. Iraniha flew from Costa Rica to Mexico, and re-entered the US by land from Tijuana to San Ysidro (San Diego).

Ali Ahmed, a naturalized US citizen and San Diego City College student currently stranded in Bahrain after the US ordered airlines not to fly him home to the US, has not been so “lucky”.

Mr. Ahmed arrived in the US from Somalia with his family as refugees when he was seven years old. He was on his way from making the Hajj (pilgrimage to Mecca) to Kenya for a family reunion and arranged wedding there when he was denied entry to Kenya. He doesn’t know why, but it seems reasonable to suspect that Kenyan authorities acted at the behest of the US.

After being denied entry to Kenya, Mr. Ahmed was returned to Bahrain, where his connecting flight to Kenya had originated. But he was denied boarding on two flights from Bahrain to the US, even after being told by staff at the US Embassy to Bahrain that he should buy a new ticket and would be allowed to fly home.

Mr. Ahmed had never planned to do anything more than change planes in Bahrain, and has no citizenship or right of residency there. We suppose that as a US citizen he could, if necessary, take refuge in the US Embassy if Bahrain doesn’t let him stay and he can’t get to anywhere else. But in the circumstances, that might amount to self-imprisonment rather than sanctuary.

It would be difficult and extremely expensive fro Mr. Ahmed to return from Bahrain to the US while airlines are prohibited from transporting him into the US or through US airspace. Canada prevents people on the US no-fly list from flying to or from Canada. Almost all flights between Mexico and Europe or Asia pass through US airspace and have repeatedly been subjected to US no-fly orders.

For Mr. Ahmed to get home in spite of the US no-fly order would require him — if the other countries along the way allow him do so — to fly from Bahrain via Europe or Dubai to somewhere far enough south in Latin America (such as Brazil or Argentina) that the flight doesn’t cross over Florida, then on to Mexico, and then re-enter the US by land from Mexico.

For now, Mr. Ahmed is continuing to try to negotiate assurances from US officials that the US will withdraw its no-fly orders to airlines and allow him to fly home more directly to the US.

It’s past time for the US to recognize that restrictions like these on the rights of US citizens to  leave or return to the country of their citizenship, or to travel within it, are violations of their human rights.

As the TSA’s “screening” has become increasing invasive — searches, x-ray and microwave “whole body imaging”, genital groping, etc. — more and more people have suggested that, since we are required to submit to a virtual strip-search and/or groping of our genitals in order to obtain TSA permission to travel, we might as well show up at the TSA checkpoint already naked.

But what happens if a would-be traveler takes off their clothes at the checkpoint, so the TSA staff can see a little more clearly whether they are carrying any weapons or explosives?

Later this month John Brennan goes on trial before a county judge in Portland, Oregon, charged with violating Portland City Code 14A.40.030 (“indecent exposure”) for doing just that. Mr. Brennan has also been threatened by the TSA with the possibility of an administrative fine of up to $10,000 for violating Federal regulations (49 CFR §1540.109) by “interfering” with TSA screeners in the performance of their duties.

As we understand it from Mr. Brennan’s blog and other sources, here’s what happened:

On April 17, 2012, Mr. Brennan showed up — clothed — at Portland International Airport (PDX) for a flight to San Jose, CA.  He went through a metal detector without setting off any alarms. Since he declined to “consent” to a virtual strip-search, TSA staff also gave him an “enhanced pat-down” including the usual groping through his clothes, still finding no sign of anything contraband, dangerous, or threatening. But the TSA continued to detain Mr. Brennan at the checkpoint.

The TSA didn’t give Mr. Brennan any clear explanation of why he was still being detained, or what would happen next, but it seemed like their super-duper detectors had indicated that a chemical swab of his clothing or belongings had shown some indication of possible explosives.

At this point Mr. Brennan did the only thing he could have done to provide additional evidence to the checkpoint staff that he wasn’t hiding any weapons or explosives under his clothes, and to calmly and quietly protest the TSA’s treatment of him in the manner least likely to obstruct any further, more intrusive search they might want to conduct of his person or clothing: He took off his clothes. All of them. And when the TSA still wouldn’t let him go, but instead called the local police and told him to put his clothes back on, he peacefully declined to do so. At that point, he was arrested by Port of Portland police.

Mr. Brennan was originally charged with a misdemeanor violation of state law, ORS 163.465 (“public indecency”), but that charge — which would have entitled him to a jury trial, and would have required the prosecution to prove “the intent of arousing … sexual desire” — was dropped the next day.

That leaves the Portland “indecent exposure” ordinance and the TSA’s regulations against interfering with “screeners” in the performance of their duties.

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