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The Identity Project

Category Archives: Secret Law

Jan 09 2013

Judge refuses to look at secret “no-fly” evidence, reaffirms that travel is a right

What’s been most noteworthy in DHS legal arguments in “no-fly” and other related  cases isn’t that the government has tried to argue in defense of intrusive and repressive surveillance and control of travel.

Instead, the consistent strategy of the DHS has been to argue (1) that it doesn’t have to give any arguments or evidence in support of these practices, because they are exempt from judicial review, and (2) that if it does have to give the courts any evidence or arguments, it can do so in secret, so that opposing parties and their lawyers are unable to know, or respond to, the government’s secret arguments and secret evidence.

Fortunately, some judges seem to be running out of patience with these claims that the executive branch of government is above the law.

We’re particularly encouraged by the latest order issued December 20, 2012 in the case of Ibrahim v. DHS, which continues to appear likely to result in the first review of a no-fly order, on its merits, by any court.

Since 2005, when she was refused boarding and detained by police when she tried to board a flight at San Francisco International Airport, Rahinah Ibrahim has been trying to find out who put her on the “no-fly” list and why, get off the “no-fly” lost, and obtain damages from the government agencies, contractors, and individuals responsible for her false arrest and the interference with her right to travel.

The city and county of San Francisco (responsible for the airport police) eventually paid Dr. Ibrahim $225,000 to settle her claims against them.  But the federal government defendants have continued to try to get the case dismissed before any discovery, fact finding, or trial on the merits of Dr. Ibrahim’s claims.

The 9th Circuit Court of Appeals has twice rejected the government’s appeals of preliminary rulings allowing the case to go forward and allowing Dr. Ibrahim’s lawyers to proceed with discovery.  But even after the federal defendants’ latest appeal was rejected, the government again moved the District Court to stay any discovery and dismiss the complaint.

In support of their latest motion to dismiss, the government went beyond filing evidence and legal arguments with the court “under seal” for in camera review by the judge (but not Dr. Ibrahim or her lawyers).

Instead, the government called the judge’s chambers to advise that a courier was on his way from Washington to the courthouse in San Francisco with some secret documents, which he proposed to show the judge, alone in chambers, and then take back to Washington so that there would be no record with the court, even in a “sealed” file, that would enable the court of appeals to review the basis for the judge’s decision.

Judge William Alsup of the U.S. District Court for the Northern District of California told the courier not to darken his door, and refused to look at any of the secret evidence, even in camera. Then he delivered a smackdown to the government in his ruling dismissing its motions.

Read More →

Dec 05 2012

The DHS FOIA Office “is not in service”

We’ve been waiting for years for responses to some of our FOIA requests to the TSA and DHS, including a request for records of what happened to our earlier FOIA requests that were subjected to a special program  of political review and reporting to the White House, a request for records that were previously improperly withheld under a claimed FOIA “exemption” which the Supreme Court eventually ruled didn’t exist, and a request for any records of the TSA having sought or obtained OMB approval for its Certification of Identity form.

Unfortunately, the de facto policy of the Department of Homeland Security is not just to ignore any FOIA requester who isn’t already suing it, but to make it impossible even to communicate with it or obtain proof of having made requests.

As we’ve noted before, the DHS uses a contractor who often fails either to deliver their mail or return the return receipts, making it impossible to prove they have received requests. Recipients have told us that the mail is often so browned and burnt by the contractor’s high-intensity x-ray screening that mail that is eventually delivered to DHS, after a delay of a week or so, is often illegible.

Despite huge expansion, changes, reorganizations, and relocations of DHS offices, the DHS FOIA Regulations and what is required by law to be the definitive list of DHS FOIA contacts hasn’t been updated since 2003, despite our repeated protests. Today, many of those addresses lead only to the dead-letter office.

Many DHS and component offices don’t disclose their physical locations. Even if you can find where their offices are, the doors are barred to those without appointments and government-issued photo ID.

And it’s getting worse.  Now the main phone number for the DHS FOIA Requester Service Center (and, if you want to complain about their unresponsiveness, the DHS FOIA “Public Liaison” as well), has been disconnected or taken out of service. Not that it was usually answered by a human being, or that voicemail messages were usually returned, but turning off the phones entirely (or using only some other undisclosed phone numbers at their undisclosed location) is really a new low.

If you go to the Where to Make a FOIA Request page on FOIA.gov, and choose “Department of Homeland Security” and then either “Headquarters and Privacy Office” or “I don’t know which office”, you are directed to call (703) 235-0790.  (Click the image above for a larger version of the Web page.) Call that number, and you get the recorded message, “Sorry. The number you have reached is not in service.”

We knew the DHS FOIA Office was “not in service”, or at least not serving us. But we didn’t realize that they had gotten the phone company to put a recording on their line telling that to anyone who tries to call.

[Update: The TSA and DHS claim that the “FOIA.gov” website is maintained by the Department of Justice and beyond the control of the DHS. But the same wrong number appears on DHS.gov at http://www.dhs.gov/check-status-your-foia-request as the number to call to find out the status of a FOIA request, along with a self-referential hyperlink for FOIA status information that links back to the same page.]

Nov 20 2012

TSA spreads FUD on “Opt Out and Film” week

This week is national Opt Out and Film Week. Across the country, travelers will be documenting the TSA’s practices of groping the genitals of anyone who wants to exercise their right to travel without “voluntarily” submitting to an x-ray or RF virtual strip search.

The TSA even acknowledges Opt Out and Film Week in its official blog, where Blogger Bob sez:

We’re also aware of the Opt Out and Film week, where some are planning on opting out of the body scanner and then filming their experience. TSA respects passengers rights to exercise freedom of speech as well as the rights of fellow travelers trying to get to their destination safely and without unnecessary delay. While the TSA does not prohibit photographs at screening locations, local laws, state statutes, or local ordinances may.

That looks to us like an attempt to sow Fear, Uncertainty, and Doubt (FUD) on clear-cut Constitutional rights.

While the TSA has a history of improperly calling local cops on photographers (for which we are currently suing both the TSA staff and the police who acted on their bogus complaints), it’s not true that  “local laws, state statutes, or local ordinances may” restrict the exercise of First Amendment rights.

As we say in our cheat sheet, What you need to know about your rights at the airport:

You have the 1st Amendment right to film, photograph, and record what happens in public areas of airports, including your interactions with TSA and screeners.  Photography and recording in airports and at TSA checkpoints violates no Federal law or TSA regulation. Any state or local laws that purport to prohibit this are likely to be unconstitutional. You have the right, for your own protection, to document what happens to you and what is done to you.

Nov 16 2012

The facts on the ground in Arizona

“Don’t trust, and don’t verify“, would seem to be the motto of authorities in Arizona when it comes to demands for documents and “proof” of citizenship and status — if your skin is brown.

Arizona’s SB1070 requires police, in certain circumstances, to “attempt” to determine your immigration status. But that obligation on the police does not create any obligation on individuals. In its initial decision on SB1070, the Supreme Court made clear that this provision of the law cannot Constitutionally be used as the basis to detain people without some other lawful basis.

Actions on the ground in Arizona, however, suggest that in practice the burden of proof is being placed on (brown-skinned) Arizonans to prove that they are “not illegal”, on pain of prolonged detention on the basis of mere suspicion (and regardless of the weight of the actual evidence).

The Phoenix New Times has been following the case of Briseira Torres.  She was born (at her mother’s home, which the Department of State seems to find inherently suspicious) in Arizona, and her birth was registered (albeit late, as is common for home births) with the Arizona Office of Vital Records.

One doesn’t have to be registered with the government to be born, or to be a US citizen. But that didn’t stand in the way of Arizona and US authorities.  When Torres went to the Federal Building to apply for a passport for her daughter, after submitting a copy of her own birth certificate as evidence of her daughter’s US citizenship by birth, the State Department employees at the passport office called in Arizona state law enforcement officers to help interrogate Ms. Torres.

Eventually, on the theory that the original registration of Ms. Torres’ home birth had been falsified, the Feds turned her over to state authorities, who had her indicted (withholding from the grand jury the state’s official record of her valid birth certificate, and falsely claiming to the grand jury that her birth registration had been “cancelled”)  for fraud.  She was jailed for 4 1/2 months, during which time she was separated from her child and lost her home and car because she couldn’t make the payments on them, before she got a lawyer and the state withdrew the charges.

Now, to try to retroactively justify their deprivation of Ms. Torres’ rights, state officials have initiated a newly-created administrative process to revoke the registration of her birth.

In other words, the state of Arizona wants to “un-birth” Ms. Torres — at age 31.

We’re glad Ms. Torres has a lawyer, and we hope she collects substantial damages from both Arizona state and county officials and the State Department “special agent” who initially detained her, called in the state cops, and eventually turned her over to their custody.

This incident began with Ms. Torres being called in to answer questions about her passport application for her daughter. The role of the Passport Office and other State Department employees shows exactly why we are so concerned about the State Department’s proposed new questionnaire for passport applicants.

Government “un-birthing” of citizens isn’t the only strange thing going on in Arizona, unfortunately.

At the Deconcini border crossing between the central business districts of Nogales, Arizona, and Nogales, Sonora, US Customs and Border protection is requiring some “trusted travelers” to submit to interrogation by allegedly lie-detecting robots developed (with DHS grant money, we presume) by the National Center for Border Security and Immigration at the University of Arizona.

If the robot thinks you are lying, “a more through interview would follow”, according to news reports.

But Ms. Torres’ example shows that if a human Fed in Arizona thinks you are lying about your papers, they will detain you and turn you over to the state of Arizona to be locked up without bail for months, without bothering even to look at your actual papers (not that you have to have any “papers” in the first place to be born or have rights).

In that light, we hope courts will look skeptically at the legality of prolonging the detention of a border crosser based on the statement of a semi-anthropomorphic animated robot that, “I think you are lying.”

Nov 13 2012

How Australia profiles travelers: A look inside the “black box”

At a “Big Data” conference in Sydney earlier this month, the head of Australia’s traveler tracking and profiling office (his actual title — we are not making this up — is “Director Intent Management & Analytics“) gave an  unusually revealing presentation (PDF) [also here] about the nature of the government’s travel data warehouse and how it is used to predict the “intent” of travelers to and from Australia.

Klaus Felsche of the Australian Department of Immigration and Citizenship (DIAC) didn’t mince words, referring explicitly to “data mining”, “risk scoring”, and “profiling” systems and algorithms, although lamenting that DIAC doesn’t (yet) have access to social media profiles or some data from other Australian  government agencies.

The US government has rarely used the words “scoring, “profiling”, or “data mining” with respect to its warehousing and use of Passenger Name Records (PNRs) and other travel data.  Most of the architecture, as well as all of the rules and algorithms, have been withheld from public disclosure, even when we have requested this information under the Privacy Act, FOIA, and/or through foreign governments and airlines that have allowed PNR data subject to their jurisdiction to be fed into these data warehouses and data-mining systems.

The “threat analysis” component of US travel control systems like Secure Flight has remained an unexplained “black box” whose operations are part of the magical secret sauce that justifies the government in enforcing  whatever its oracle decrees.  In this diagram — the most detailed yet provided by the TSA — it’s the red box at right center.

So we are grateful to Mr. Felsche of the Australian DIAC for providing a clearer picture of what data governments are archiving about us and our travels, and how they are using it.  Just remember, as you study his presentation, that:

  1. “Targeting” — the one euphemism that still permeates Mr. Felshe’s presentation — means search, seizure, interrogation, and prohibition of travel. In other words, deprivation of fundamental rights, to a greater or lesser degree depending on whether it means mere delay and intrusion or whether it means being confined by a no-fly order to the island of Australia for the remainder of one’s natural life.
  2. Australia is a relatively small country in population and (as his presentation makes clear) computing resources available to this component of the government.  Presumably, what’s being done with travel data by DIAC is only a subset of what is being done by the DHS, and perhaps in the European Union.
Nov 06 2012

DHS Scrooge says U.S. citizen can’t come home for the holidays to see his ailing mother

In the latest episode in the increasingly bizarre but all too real saga of standardless secret administrative no-fly orders from the DHS to airlines, prohibiting the transportation back to their home country of US citizens,  Oklahoma native Saadiq Long is being prevented from returning home to the US to spend the holiday season with his terminally ill mother.

Long is a US citizen and a veteran of the US Air Force, never charged with any crime in the US or any other country, who has been living and working as an English teacher in Qatar for the last several years.  He’s also a convert to Islam, which shouldn’t be relevant but probably is.

When he learned of his mother’s illness back home in Oklahoma, he made reservations and bought tickets from KLM for flights from Qatar to the US for what might be a last visit with his mother.

Less than 24 hours before his scheduled departure from Qatar in May, KLM told Mr. Long that the airline (and all others serving the US) had been forbidden from allowing him to board any flight to the US.

Mr. Long has been trying ever since to find out why the government of his country has forbidden all airlines from transporting him, or to find a way to get those orders rescinded. But to date, the DHS has maintained its position that it will neither confirm nor deny whether it has issued any no-fly orders with respect to any specific person, much less the basis (if any) for such orders.

KLM explicitly informed Mr. Long that it had received a no-fly order from the DHS. So in theory, KLM would be required by Dutch data protection law to disclose that order to Mr. Long on request. That wouldn’t tell Mr. Long why he had been banned form returning to his country (the DHS probably didn’t share the reasons for its order with the airline), but would prevent the DHS from claiming in court that whether Mr. Long has been prohibited form flying is a state secret.

Given KLM’s poor track record when individuals have requested KLM’s records of its communications with governments, and the Dutch data protection authority’s poor track record of enforcing the law, it’s hard to predict whether KLM would comply with a request from Mr. Long for all orders or communications pertaining to him between KLM and the US government.

Mr. Long is being assisted by the Council on American-Islamic Relations (CAIR), which has led the struggle for judicial review of no-fly orders. CAIR staff attorney Gadeir Abbas, the leading advocate for US citizens exiled by no-fly orders, told Glenn Greenwald that, “Every few weeks I hear of another Muslim citizen who cannot return to the country of which he is a citizen.”

[Update: Mr. Long was again denied boarding by KLM in Qatar on November 8, 2012.]

Oct 18 2012

US citizen banished by no-fly order: Is it because he stood up for his rights?

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.

Oct 03 2012

Government Surveillance of Travelers

For those attending today’s discussion of Government Survelliance of Travellers and the DHS “Automated Targeting System” (ATS) at the Brennan Center for Justice at NYU School of Law, or those who can’t make it but are interested in the topic, here are the slides from the presentation by Edward Hasbrouck of the Identity Project (PapersPlease.org), and links to additional references:

Today’s event is open to the public, so please join us if you are in New York and free at mid-day.

Sep 21 2012

Department of State Form DS-71: “Affidavit of Identifying Witness”

We don’t normally require our friends and family to show us their papers to establish their identities. We have better ways of recognizing who they are.

Many US government agencies, however, seems to want to make government-issued ID credentials the only way to establish who we are — even when Federal regulations require them to accept other forms of evidence of identity.

Case in point: Department of State Form DS-71: “Affidavit of Identifying Witness” for passport applicants.

As we’ve noted previously, the State Department’s own regulations at 22 C.F.R. § 51.28 entitle applicants for US passports to establish their identity by the affidavit of an identifying witness, in lieu of documentary evidence of identity.  But it seems like the State Department doesn’t really respect this right, and prefers to get all applicants to provide papers, rather than people, to “prove” who we are.

As of today, the version of Form DS-71 posted on the State Department’s website is an obsolete one whose use was approved by the Office of Management and Budget only until Dec. 31, 2005. Elsewhere on the State Department site, the link for Form DS-71 in the index of passport forms links to a PDF of an otherwise-blank page that says, “Please visit your local [passport] Acceptance Facility to obtain this form.”

Disturbingly, we’ve received reports from people who went to the State Department’s own passport offices, accompanied by witnesses prepared to identify them, and were told that no current version of Form DS-71 was actually available.

We can’t see any reason not to make this form available online with all the rest of the passport forms, much less not to have it available at passport offices, other than to hide its existence and discourage its use.

Having let its approval for any version of this form lapse for several years, and having now obtained only temporary approval that expires at the end of this month, the State Department is now in the process of seeking renewed OMB approval for a revised form, to be used for the next three years.

According to to the State Department’s application to OMB (which includes both the current and proposed versions of Form DS-71), the number of passport applicants using this form has declined dramatically, from 163,400 in 2009 to 44,000 this year.

The State Department claims that this decline is due to greater use of other “public records” by passport examiners. But a better explanation for the abrupt decline in use of this form is its removal from the State Department website and from availability at passport offices. Applicants for passports are providing other identifying records because they aren’t being told they have the alternative of establishing their identity with an affidavit from an identifying witness.

Have you tried to establish your identity to the Passport Office by having a witness identify you? Have you had trouble obtaining the proper form, or been discouraged from using it in favor of obtaining and providing other types of evidence of identity?  Please let us know.

[Update: Here’s the version of Department of State Form DS-71, “Affidavit of Identifying Witness”, most recently submitted to and approved by OMB.]

Sep 12 2012

Secret “watchlist” used as basis for preventive detention

Secret, standardless, extra-judicial administrative “watchlists” of supposed terrorists aren’t just being used to decide who to “watch” — they are now being used as the basis for preventive detention.

A Charlotte, North Carolina man arrested for allegedly driving with a suspended license during the Democratic National Convention had his bail increased to $10,000, cash-only, and spent 36 hours during the convention in jail before getting his bail reduced, on the basis of a police report that gave the basis for detention as, “Known activist + protester who is currently on a terrorist watchlist. Request he be held due to DNC being a National Special Security Event.”

James Ian Tyson told the Charlotte Observer he was shocked to learn that he was on a terrorist watch list. “I haven’t done anything remotely criminal involving politics. No one knows how you get on this list … or the accountability process or, most importantly, how they get off this list….  I am a local Charlottean and an activist and I believe this is an attempt to stifle my First Amendment rights and keep my voice from being heard.”

According to this CNN report and video interview with Tyson and his lawyer, “Tyson … says he has no idea how he wound up on the government’s terrorist watch list. He just wants to save the rain forest. The only dings on his record, at least as far as he knows, consist of fishing for trout out of season and driving while impaired.”

As U. of Miami law professor Michael Froomkin notes,  “[T]his is the first documented example of a non-air-travel-related domestic consequence of being on a ‘terrorist watch list”… I think this small incident is actually a big deal.”