Apparently in response to repeated inquiries from the Identity Project about what has happened to our most recent complaint to the DHS and TSA that their procedures violate the right to freedom of movement guaranteed by Article 12 of the International Covenant on Civil and Political Rights (ICCPR), the TSA has officially informed us that “the Department has designated the Officer for Civil Rights and Civil Liberties as the point of contact for Executive Order 13107” on implementation of human rights treaties.

Executive Order 13107 requires that, “The head of each agency shall designate a single contact officer who will be responsible for overall coordination of the implementation of this order” including “responding to … complaints about violations of human rights obligations that fall within its areas of responsibility or, if the matter does not fall within its areas of responsibility, referring it to the appropriate agency for response.”

Despite that clear requirement, none of our previous complaints of violations of the ICCPR have been acknowledged or answered. So far as we can determine, the July 22, 2010 letter we received from the TSA is the first public indication by any Federal agency, ever, of the designation of the point of contact for human rights complaints required of each agency by Executive Order 13107.

Since the TSA has, at the same time, said that they will take no action to investigate complaints unless the complaint is received while the violation is ongoing — which in most cases is impossible — we have forwarded our latest complaint and our previous unanswered complaints of violations of the ICCPR by the DHS and DHS component agencies to the DHS Officer for Civil Rights and Civil Liberties for Departmental action.  Our letter to the OCRCL: with attachments (2 MB), without attachments

[Immediate response the same day from Margo Schlanger, DHS Officer for Civil Rights and Civil Liberties: “I have received your email and, as requested, we will examine your complaints. ”  But that was followed not by an acknowledgement letter  but by a “request for clarification” from the OCRCL. We responded but only in February 2011 did we finally receive confirmation that our complaints had docketed. Further correspondence with the DHS Office for Civil Rights and Civil Liberties (CRCL): Letter from CRCL to IDP, Jan. 18, 2011; email from IDP to CRCL, Jan. 31, 2011; email from CRCL to IDP, Feb. 2, 2011; email from IDP to CRCL, Feb. 2, 2011; email from CRCL to IDP, April 1, 2011]

The TSA is still stonewalling our FOIA requests for their Standard Operating Procedures (SOPs), which we presume are among those that have been (illegally) sidetracked and delayed for review by DHS and other administration political commissars.

But after the Associated Press pried loose internal DHS e-mail messages confirming the delays in processing “politically sensitive” FOIA requests and the DHS Inpector General started asking questions, the TSA has responded to a request from Phil Mocek (some months older than ours) for the TSA Screening Management SOP.

Not, of course, that the TSA has actually disclosed any more information about its standard operating procedures. The TSA’s response to Mr. Mocek’s request consists of a blanket claim that the entirety of the Screening Management SOP is exempt from disclosure because it would “benefit those attempting to violate the law” (by exercising their rights?) and “be detrimental to the security of transportation” if disclosed.  Despite having released excerpts from an earlier version of the same document in response to one of our previous FOIA requests, and despite an unredacted copy of the entire document having been posted on a public Federal government website, the TSA now claims that no portion of the current version can be released.

Mr. Mocek’s request had been pending for more than a year before he received even this categorical denisal. In response to his periodic requests for information concerning the status of his request, he was told by the same TSA FOIA office staff who are handling our requests that  “processing” of his request was completed in January 2010, but that the response (i.e. informing Mr. Mocek that his request had been denied in its entirety) was delayed until July for “management review”. According to one e-mail message from the TSA to Mr. Mocek in February, “Your FOIA has been processed and is currently being reviewed by TSA management before a response can be sent to you.” This seems to indicate that Mr. Moceks’s request — and, we presume, our still-pending request for the same document — was subjected to the process of political review and illegal delay described in the documents released to the AP.

[We eventually received a response identical to that sent to Mr. Mocek, denying our request in its entirety.  We have appealed that denial.  To confirm whether our requests were among those improperly delayed or subjected to political scrutiny, we’ve filed new FOIA requests for the documents released to the AP and for all records of the processing of our previous FOIA requests and appeals.]

“No one shall be arbitrarily deprived of the right to enter his own country.” (International Covenant on Civil and Political Rights, Article 12)

This week the Council on American-Islamic Relations held a news conference in Washington (statements, testimony, and links to adiditonal info) featuring first-hand accounts of US citizens who have been trapped overseas, unable to exercise their right to return to the USA, because the US refuses to give airlines “permission” to transport them to the USA.

We’ve reported previously on some of the same and similar incidents.  The denial of transport, in the absence of judicial orders such as a no-fly injunction, violates airlines’ contractual and regulatory obligations as common carriers, and the extra-judicial government denial of transport and entry to the country fails to satisfy the substantive and procedural standards under the ICCPR for measures that implicate freedom of movement under Article 12, and violate US international obligations as a party to that treaty.

The US signed and ratified the ICCPR with the reservation that in the USA it would not be “self-efeectuating”, and it is not clear to what degree it has been effectuated by other US legislation. Since no-fly orders are given to airlines by the government, and the orders themselves are kept secret from the (would-be) traveler, it’s difficult for travelers to establish standing to challenge them against the government in US courts. Former Secretary of Homeland Security Chertoff’s publicly declared goal was never to allow judicial review of no-fly orders, and the Obama Administration has announced no change in that policy.

But US citizens who are trapped abroad, unable to return to the USA because airlines won’t transport them (presumably because the US government has told them not to, or hasn’t given them affirmative clearance to do so), aren’t limited to recourse through US courts.  By depriving them of their right of return, while they are outside the USA, the US has given them the opportunity to shop the world for the jurisdiction form which to try to return, and to sue the airline (and, perhaps, the US government) for extra-judicial refusal of, and interference with, common-carrier transportation, and violation of Article 12 of the ICCPR. Those lawsuits won’t be heard in the USA, but in jurisdictions that ratified the ICCPR without reservations, and where the USA may not be able to invoke its “state secrets” doctrines to give impunity to airlines that chose to obey, rather than to challenge, illegal orders form the US government.