Secret Law – Page 20 – Papers, Please!

Mar 25 2013

TSA takes a (small) step in the right direction

Earlier this month, the TSA announced that — although of course there are still no rules for what is and isn’t permitted at TSA checkpoints, travelers can expect that beginning April 25th we will be “permitted” (not entitled, “permitted”, since of course the exercise of our right to travel is at the TSA’s discretion) to bring tiny pocket knives and certain previously-prohibited sporting equipment onto commercial airplanes.

We could criticize the TSA’s press release for not going far enough, and for its arbitrariness. (We’d like to say that it’s a “policy” change, but we can’t, since there are no publicly-disclosed TSA checkpoint polices.) It’s pretty obvious that it doesn’t reflect any rational risk assessment. Why allow golf clubs, hockey sticks, and pool cues, but prohibit cricket bats?

But lest it be said that we never give credit to the TSA when credit is due: We congratulate the TSA for taking a small step toward saner “screening” practices.

Unfortunately, the TSA’s announcement has prompted a hysterical reaction from the opposite direction, with bills being introduced in both houses of Congress to direct the TSA to seize even the tiniest blades, and to protect us against the hockey-stick-armed terrorist hordes.

Ironically, the TSA defends itself with an argument that could equally be used against virtually all of the TSA’s continuing restrictions on carry-on items:

We have yet to see a single incident where a passenger was injured using a knitting needle or scissors. Small knives have been permitted in Europe for some time now, with no incidents that we are aware of. In fact, the GAO published a report that said there had been zero security incidents where these items had been used aboard an aircraft.

Passengers are allowed to bring bottles of water and many other items prohibited by the TSA onto flights in Europe and the rest of the world. We are aware of no incident in which anyone has tried to blow up or highjack an airliner using a bottle of water as a weapon. So if this is the TSA’s criteria, what is the rationale for the list of items that are still prohibited in carry-on luggage?

The fact is that searches at TSA checkpoints, like most other “administrative” searches, are designed as security theater — to make us feel safer rather than to make us be safer — and for a variety of other law enforcement purposes (mainly seizure of prohibited substances). Not on the basis of aviation security.

Would-be terrorists would have a hard time breaking through reinforced cockpit doors. Those with adequate cutting tools would probably be subdued (and possibly lynched) by passengers and flight attendants before they could do so. These, and not TSA checkpoints, are the real defenses against the bogeyman of “another 9/11”.

Even the prohibition on firearms on airline flights has more to do with gun control in general than with anything specific to aviation security. The TSA boasts that it finds loaded guns in carry-on bags every day. Does that suggest that every gun-toting traveler is a terrorist? Or that travelers have been flying with firearms every day for decades, almost entirely without incident? It’s hard to see how a gun poses more of a threat on an airliner than, say, in a crowd (or in a car) on a city street, where it’s perfectly legal.

We salute the saner voices among the secret decision-makers who determine the TSA’s secret non-rules. We urge them to stand firm in defense of our right to keep our sewing scissors and pencil-sharpening knives in our carry-on bags, and to resist the pressure to pander further to Congressional fears.

Mar 09 2013

Citizen Long takes the long way home

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.

Mar 02 2013

Travel blogger kicked off plane by pilot for taking photo of… seatback?

Frequent flyer and travel blogger Matthew Klint was recently kicked off a United Airlines flight from Newark to Istanbul after a flight attendant saw him take a picture of the back of the seat in front of him, and reported him to the pilot. The pilot told Mr. Klint, “You are not flying on this flight…. We’ll call the police if we have to.”

Perhaps unfortunately, Mr. Klint didn’t insist that the police be called, or call them himself, leaving him dealing with United Airlines’ public relations department rather than with legal authorities.

As a frequent flyer and blogger, Mr. Klint at least able to get the airline to talk to him, after the fact. But what can an ordinary traveler do in such a situation?

We talked about this last year in articles on Does an airline pilot have the right to refuse to let you fly? and What can you do if an airline pilot won’t let you fly? But it bears repeating:

Under Federal law, as common carriers, airlines must transport all would-be passengers willing to pay the applicable fare in their published tariff and comply with their published conditions of carriage. Not to do so is a serious violation of their duties.

If an airline refuses to allow you to fly, for any reason other than a violation of published laws, regulations, or conditions of carriage, you can and should make a formal complaint against the airline to the Department of Transportation.

A pilot can order you off the plane only if the pilot genuinely believes that you pose a hazard to the safe operation of the flight, in which case the pilot is required to log and report this safety incident.

If a pilot orders you off the flight for some other reason, or without logging and reporting his or her action as a safety incident, you can and should report the pilot to the FAA.

We’ve offered our support to Mr. Klint, should he wish to pursue a legal challenge to the actions of the airline and pilot against him.

Feb 15 2013

“Sentenced to life without air travel”

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.

Feb 04 2013

Update on Mocek v. Albuerque

On January 14, 2013, U.S. District Judge James O. Browning issued his first major ruling in Mocek v. Albuquerque, the Federal civil rights lawsuit brought for false arrest at a TSA checkpoint brought by Philip Mocek following his acquittal by a jury on trumped-up criminal charges.

Judge Browning dismissed Mr. Mocek’s complaints against the Federal (TSA) defendants. The reasoning of that ruling is in marked conflict with several findings on the same issues by the 4th Circuit Court of Appeals in Tobey v. Jones, although that decision isn’t binding on the District Court hearing Mr. Mocek’s case since it’s in a different Federal judicial circuit.

According to the Albuquerque Journal, “Mary Lou Boelcke, Mocek’s attorney, said she expects to appeal the ruling, either before trial or after Browning decides other issues regarding the city.”

On February 1, 2013, the remaining Albuquerque defendants (the city, airport, and individual police officers) filed their own motion to dismiss the complaints against them. That motion is now pending.

Jan 22 2013

TSA replaces “probable cause” with private profiling

The TSA has made explicit its intent to take the next logical but lawless step in the merger of (1) profiling of travelers and (2) privatization of judicial decision-making: outsourcing of decisions as to who should be subjected to what degree of intrusiveness of search to private contractors acting on the basis of commercial data.

The TSA already delegates on-the-spot “discretionary” decisions about searches (“screening”) to private contractors at airports like SFO, and relies for its profiling (“prescreening” and “no-fly”) decisions on commercial data contained in airline Passenger Name Records (PNRs).

Now a request for proposals quietly posted by the TSA early this month among the “Federal Business Opportunities” at FBO.gov, and spotted by the ACLU, gives notice that the TSA is considering “Third Party Prescreening” of travelers: TSA contractors would decide in advance (secretly, of course, on the basis of secret dossiers from private data aggregators) which travelers would be “invited” to proceed through the less-intrusive-search “Pre-Check” security lanes, and which would be subjected to “ordinary”, more intrusive groping of their bodies, opening of carry-on baggage and belongings, interrogation, etc.

In effect, “Third Party Prescreening”, as the concept is defined in the TSA notice to would-be contractors, would replace probable cause with private profiling as the basis for determining who among us would be legally obligated, as a condition of the exercise of Constitutional civil liberties and internationally recognized human rights, to submit to exactly what degree of intrusiveness of search of our persons and property.

The by-invitation-only TSA “Pre-Check” profiling scheme is already entirely arbitrary, as travelers have discovered when they have tried to find out how to obtain an invitation to the less-mistrusted-traveler club or why they haven’t been invited. “Don’t call us, we’ll call you” if we want to invite you, say airlines and the TSA. There are no publicly-disclosed substantive or procedural standards for invitation or inclusion.

“Third Party Prescreening” would extend that arbitrariness to advance decisions that particular travelers must submit to heightened “screening” (or are not to be allowed to proceed through lighter screening, which amounts to the same thing) before they will be “allowed” to exercise their right to travel.

Such a particularized decision, in advance, conditioning travel by a specific traveler on submission to a specific type or degree of intrusiveness of search is not what was contemplated in judicial decisions upholding “administrative” searches at airports. Rather, this is the sort of search that the Constitution demands be justified by probable cause, as articulated to and approved by a judge.

Private contractors are not judges. Fitting the profile, based on a secret commercial dossier, as determined by a secret algorithm, is not probable cause. No “Third Party Prescreening” could create a lawful basis for a search, or for interference with the right to travel of those who decline to submit to such a search.

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.

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.”

Papers, Please!

The Identity Project