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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Rep. Paul Broun, MD, a Georgia Republican member of the House Committee on Homeland Security, has called for the resignation of the Administrator of  the TSA, John Pistole.

We agree with Rep. Broun that “The time has come for serious action to be taken” with respect to the TSA, that “drastic change” is required, and that, “The time for that change is now.” And we agree that those at the top as well as the bottom of the bureaucratic hierarchy need to be held accountable.

Most of all, we’re pleased to see Rep. Broun put civil liberties first in his letter to TSA Administrator Pistole requesting his immediate resignation:

Americans can no longer tolerate the flagrant violations of their civil rights which are occurring at airports nationwide in the name of “security.”

Pistole’s resignation, now or later, would accomplish nothing unless Senators ask more serious questions (we have a few suggestions) before confirming a new TSA Administrator.

As long as the TSA is allowed to wield power over the people (and our exercise of our right to travel)) through secret, extra-judicial administrative fiat, airports and other transportation facilities will remain the domestic counterpart of Guantanamo: law-free zones in which even the most friendly-faced and “respectful” leadership can do little to change the essential illegality of the agency’s operations.

More is required, we think, than another turn of the revolving door on the office of the TSA Administrator.  If the TSA is retained, it needs to be brought within the rule of law.  We have some specific suggestions for interim reform of the TSA’s policies and practices, not just its personalities. But fundamentally, we agree with participants in the White House’s own public poll, whose first choice of requested actions for the President was to abolish the TSA entirely.

A US citizen who was imprisoned and tortured for three months by the US government’s “allies” in Abu Dhabi and Dubai, and who can’t come home even after being released from the UAE because the US government has put him on its “no-fly” list and forbidden any airline from transporting him to the US, has requested political asylum in Sweden.

Yonas Fikre came to the US with his family in 1991, when he was 12 years old, as a refugee from Eritrea, and later was naturalized as a US citizen.

In April 2010, while Fikre was abroad on business and visiting family, FBI agents contacted him to try to recruit him as an informer and agent provacateur in an FBI entrapment “sting” directed at members of a mosque Fikri had attended in Portland, Oregon. Fikre declined to become a snitch and infiltrator for the Feds, but the FBI followed up with implicitly threatening email messages that, “[T]he choice is yours to make. The time to help yourself is now.”

In June 2011, he was arrested in Abu Dhabi by plainclothes UAE police, who held him for three months in a secret prison in Dubai while torturing him, interrogating him about members of the Portland mosque, and telling him that he had been put on the US no-fly list and that he would never be released from their custody and torture or allowed to return to the US unless he “cooperated” with the FBI.

Eventually, he was released from detention and allowed to leave the UAE in September 2011 , but told the US still wouldn’t let him go home.  He’s been living in Sweden, where he has other relatives, since then, and has now applied for political asylum on the grounds that he has been effectively exiled from the US by being placed on the US no-fly list (in violation of his human rights under Article 12 of the ICCPR, to which the US and Sweden are both parties) and that his detention and torture in the UAE, presumably at the behest of the US government and/or its agents, gives him reasonable grounds to fear further mistreatment even if he were allowed to return to the US.

This isn’t the first time that the US government has used the no-fly list against US citizens as an as an instrument of exile. Here are just a few of the incidents, among others, that have previously made the news:

• Jaber Ismail: teenager born in California, stranded in Pakistan from April-October 2006, told he would only be allowed to come home if he cooperated with the FBI; allowed to return to the US only after the ACLU took up his case.
• Gulet Mohamed: teenager from near Washington, DC, tortured in Kuwait from December 2010-January 2011; allowed to return home only after the Council on American Islamic Relations filed a lawsuit on his behalf, which was due to be heard the next day but which the US government then argued was moot.
• Jamal Tarhuni and Mustafa Elogbi: aid workers for charities in Libya in January-February 2012; allowed to return to the US only when their US lawyer joined them abroad to accompany them on flights home.

It isn’t just US citizens who have been denied their right to return home by the US no-fly list. As recently noted by the 9th Circuit Court of Appeals, the US no-fly list is used by US-flag airlines on flights elsewhere in the world, and is shared with at least 22 foreign governments. Some of the foreigners prevented from returning home, or from traveling to countries other than the US, as  a result of US no-fly orders or “no-board recommendations” from US “advisors” stationed at foreign airports, include:

• Dawood Hepplewhite: UK citizen stranded in Canada and denied boarding on a flight home to the UK in February 2011.
• Mohammed Khan: Canadian citizen stranded in Germany and denied boarding on a flight home to Canada in March 2011.
• Moazzam Begg: UK citizen and former Guantanamo prisoner never charged with any crime in the US, UK, or any other country; denied boarding on a flight to Canada for public speaking engagements in May 2011.

We’ve noted previously that, as the DHS increasingly relies on state and local law enforcement officers and private contractors to carry out its extrajudicial “no-fly”, search, and surveillance orders, those individuals and their employers face a growing risk of liability for their actions against travelers.

Case in point: Ibrahim v. DHS et al.

We’ve reported previously on some of the earlier stages in this case, originally filed in 2005 by a Malaysian architect, then a doctoral candidate at Stanford University and today (having received her Ph.D. from Stanford in absentia) a professor and Dean of the Faculty of Design and Architecture at UPM in Malaysia.  When she tried to check in at San Francisco International Airport (SFO) for a flight back to Malaysia to give a presentation about her Stanford research, she was arrested by SFO airport police (a branch of the San Francisco police force) on the direction of a private contractor who answered the phone at the TSA’s Transportation Security Operations Center (since renamed — we are not making this up — the “Freedom Center”).  She was told she was on the “no-fly” list, but was allowed to fly home to Malaysia the next day, after which her US student visa was revoked.

Through her lawyers in the US, Ibrahim sued the various Federal agencies involved in no-fly decisions; their individual officials, employees, and contractors; and the San Francisco city and county, airport, police department, and individual police officers, for violations of her 1st and 5th Amendment rights.

The case has a had a tortured procedural history. After seven years, there has been no discovery, fact-finding, or rulings on any of the substantive issues. The case has, however, survived a series of District Court rulings and two appeals to the 9th Circuit Court of Appeals, first in 2008 on which, if any, Federal court (district or circuit, in San Francisco or DC) had jurisdiction to hear the case, and then in February 2012 on whether Dr. Ibrahim had standing, as a non-US citizen now residing (involuntarily) outside the US, to bring her Constitutional claims in US courts.

The latest ruling by the 9th Circuit in Ibrahim v. DHS, which allows the case against the government and its agents to go forward, is significant for its rejection of several of the Federal government’s key arguments against judicial review of no-fly decisions:

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