Secret Law – Page 31 – Papers, Please!

Dec 11 2009

Complaint against TSA discrimination

To: TSA.OCR-ExternalCompliance@dhs.gov, civil.liberties@dhs.gov
Subject: National-origin discrimination in TSA “Screening Management SOP”
Date: Friday, 11 December 2009

According to the TSA Civil Rights Policy Statement:

“[T]he public we serve are to be treated in a fair, lawful, and nondiscriminatory manner, without regard to … national origin.”

However, according to Appendix 2A-2.C.1(b)(iv) of the TSA Screening Management SOP (Revision: 3, Date: May 28, 2008, Implementation Date: June 30, 2008), as posted at fbo.gov, and as we have discussed [on our website]:

“If the individual’s photo ID is a passport issued by the Government of Cuba, Iran, North Korea, Libya, Syria, Sudan, Afghanistan, Lebanon, Somalia, Iraq, Yemen, or Algeria, refer the individual for selectee screening unless the individual has been exempted from selectee screening by the FSD or aircraft operator.”

As applied to dual U.S. citizens or permanent U.S. residents from these countries traveling domestically within the U.S., this provision of the SOP imposing “selectee screening” (more intrusive search and/or interrogation) on the overt basis of national origin is, on its face, in flagrant violation of the TSA Civil Rights Policy Statement, statutory and Constitutional obligations, and obligations of compliance with Article 12 of the International Covenant on Civil and Political Rights (ICCPR), a treaty ratified by and binding on the U.S., and which all federal agencies have been specifically instructed to comply with by Executive Order 13107 on Implementation of Human Rights Treaties (61 Federal Register 68991).

Accordingly, the Identity Project requests that appropriate investigation, enforcement, and corrective action be taken against the agency and the personnel responsible for these illegally discriminatory procedures.

Please reply to confirm your receipt and docketing of this complaint as a complaint of a civil rights violation and a complaint of violation of the ICCPR, in accordance with Section 3 of Executive Order 13107:

“Sec. 3. Human Rights Inquiries and Complaints. Each agency shall take lead responsibility, in coordination with other appropriate agencies, for responding to inquiries, requests for information, and 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.”

We also specifically request that this complaint be included in your next report of complaints of violations of the ICCPR to the U.N. Human Rights Committee, as is required by Article 40 of that treaty.

If your office is not the office within DHS and/or TSA designated pursuant to Section 3 of Executive Order 13107 as responsible for responding to complaints of violations of human rights treaties including the ICCPR, we request that you refer this complaint to that office (in addition to your own action on this complaint of violation of domestic civil rights law), and inform us of the contact information for that office to which it has been referred and from which we can expect a response.

Sincerely,

The Identity Project

[Since the TSA and DHS have a habit of ignoring our email, we’ve also sent copies of this complaint by snail-mail.]

Dec 10 2009

TSA discloses discriminatory and improperly withheld procedures

There are no legally binding rules (other than those provided by the federal Privacy Act, the U.S. Constitution, and international human rights treaties, all of which the TSA routinely ignores) specifying the limits of TSA authority at checkpoints, what you do and don’t have to do, and which questions you have to answer or orders you have to obey.

So the traveling public, and public interest organizations like the Identity Project, have been reduced to trying deduce the de facto “rules” from the TSA’s internal procedures manuals and directives to its staff, using the Freedom of Information Act — to the extent that we’ve been able to find out what documents to ask for by name, and that the TSA has been willing to release them, usually in incomplete and censored (“redacted”) form.

Now the TSA has done us a favor by posting an unredacted version of the document of which we’ve received only portions of an earlier version, and the complete current version of which is the subject of one of our current FOIA requests: the TSA’s “Screening Management Standard Operating Procedures (SOP)”.

In posting the document on a federal government website (fbo.gov, for “Federal Business Opportunities”) as part of the public specifications for bidders on a TSA contract, the TSA added red outlines highlighting certain portions of the PDF document, and coded black rectangles to overlay them as a separate layer of the PDF file. But they left the complete text and images unredacted, so that they could be selected, cut, and pasted into a text editor from any PDF reading software. For your convenience, we’ve posted a copy with the black blocks removed, but the red highlights and everything else retained, so you can see what portions the TSA might have been trying (ineptly) to hide. Despite false TSA claims that it “was immediately taken down from the Web site”, as of today the original version is still available on the same government site, although at a slightly more obscure URL.

If, like us, you were hoping to learn the non-rules for TSA checkpoints and “screening” (search and interrogation), the Screening Management SOP is disappointing. It’s mostly about bureaucratic procedures for checkpoint supervisors. There’s been a lot of excessive commotion about whether its posting was a security breach or provides a “road map for terrorists” (it doesn’t), but little attention is being paid to some more significant things it reveals.

Here’s what we think is really significant about this document, and its release, and what we’re doing next: Read More →

Nov 17 2009

Traveler arrested at Albuquerque TSA checkpoint

A traveler attempting to return home from a political conference (a gathering clearly protected by the First Amendment right to assemble) was arrested at a TSA checkpoint at the airport in Albuquerque, New Mexico on Sunday after he (1) politely declined to show tangible evidence of his identity and (2) began recording audio, video, and/or still photographs of the incident with a handheld device. The traveler, Phil Mocek, has been a regular participant in discussions of ID requirements and TSA procedures on Flyertalk.com, and has been mentioned here before for his efforts to uncover what the “rules” if any) are at TSA checkpoints. According to initial reports and discussion elsewhere, he was released Monday, after a night in jail, and charged with criminal trespass (Albuquerque Code of Ordinances § 12-2-3), resisting, obstructing or refusing to obey a lawful order of an officer (§ 12-2-19), concealing identity with intent to obstruct, intimidate, hinder or interrupt (§ 12-2-16), and disorderly conduct (NMSA § 30-2-1). [Note: It appears that direct links to sections of the Albuquerque Code of Ordinances will work only after you click on the Albuquerque Code of Ordinances link and then on either “frames” or “no frames”, to set the required cookies in your Web browser.]

As of now, it’s unclear whether the arrest was primarily in retaliation for Mr Mocek’s declining to proffer evidence of his identity or his recording of audio, video, and/or still photographs. It’s also unclear whether he was arrested by, or at the behest of, Feds or local or state law enforcement officers (or TSA contractor rent-a-cops?), an issue that has figured prominently and sometimes decisively in other ID-demand and checkpoint cases.

We wish Mr. Mocek success in defending against these bogus charges and obtain obtaining redress from those responsible. We’ll have more to say as soon as we have a chance to see the actual complaint.

(We’ve been in touch with Mr. Mocek. As of now, he can’t comment on what happened, on the advice of counsel. But if you’d like to help him fight back, you can contribute to his legal defense fund.)

[UPDATE: The trial which was scheduled to begin June 14, 2010 has been postponed. Check our FAQ about the case or the court calendar for further updates as soon as they are available. For the status of the case, go to the county court website, complete the “captcha”, and enter “2573709” in the “criminal case number” field. Documents obtained by Mr. Mocek in response to his requests under New Mexico’s public records laws, including police reports and audio recordings, have been posted here. For further updates, see the ongoing discussion in the travel “security” forum at Flyertalk.com. Mr. Mocek is represented by private defense counsel, at considerable personal expense. You can help by making a donation to his defense fund.]

Nov 10 2009

TSA releases excerpts from guidelines for searches

As part of an effort to derail the lawsuit brought by the ACLU on behalf of Steve Bierfeldt — who was detained and interrogated at a TSA checkpoint at the St. Louis airport because he was (a) carrying an (entirely legal) amount of cash that the TSA agents apparently didn’t like, although they admitted that there was any suspicion that he had violated any TSA regulation or posed an threat to aviation, and (b) declined to answer questions about his money unless the TSA told him, which they persistently declined to do, whether he was legally required ot answer their questions — the TSA has filed a public declaration with the court that includes their latest “Management Directive” on searches of travelers.

The directive is the first official TSA document to be made public concerning the limits (if any) and authority (if any) for TSA searches of travelers. It’s part of the information the Identity Project is currently attempting to obtain through a pending request under the Freedom of Information Act for the TSA’s “Screening Management Standard Operating Procedures” (SOP) as well as “any and all … interpretive or guidance notes, usage instructions, or the like”, such as the Management Directive included in the TSA’s court declaration. Under FOIA, the TSA’s response to our request is due by this Friday, November 13th, unless they ask for a 10-day extension for special reasons, and we are eager to see the rest of the SOP and the directives interpreting and implementing it.

The “Management Directive” in the declaration filed with the court by the TSA only concerns searches. It does cover searches for evidence of identiy, although to avoid categorizing them as “searches” it describes them as “screening for identification media”. But it’s completely silent regarding interrogations, Miranda warnings, or your right to remain silent. So it looks like neither Steve Bierfeldt nor the public will get an answer, at least for now, to the question he kept asking the TSA agents who detained and interrogated him: “Am I legally required to answer that question?”

Nov 02 2009

TSA nominee up for Senate questioning November 10th

The Senate Committee on Homeland Security has scheduled a hearing on Tuesday, November 10th, at 10 a.m. in Washington to consider the nomination of Erroll G. Southers to be Assistant Secretary of Homeland Security for the Transportation Security Administration.

None of the questions we think are important got asked during an earlier confirmation hearing before the Senate Commerce and Transportation Committee. If you want the nominee for TSA to have to tell us, before he is confirmed, whether or not he thinks we have a right to travel, whether TSA decisions should be subject to judicial review, and whether he thinks the government should be keeping logs of the movements of innocent people, let your Senators and the members of the Homeland Security Committee know about your concerns, before November 10th.

We’ve asked for expedited processing of our FOIA request for the TSA’s “Standard Operating Procedures” at checkpoints, in order to make it possible to ask the nominee about those procedures and which of them he would change.

Nov 02 2009

“Do I have the right to refuse this search?”

We’re not the only people asking questions about what is and isn’t required of travelers at TSA checkpoints. Here’s the latest account — by a recently-retired career police officer — of what can happen when you try to ask these questions.

The author of the article didn’t get much of an answer — which is, of course, disturbing in itself. Our FOIA request for the TSA’s complete screening manual and Standard Operating Procedures for airport checkpoints remains pending. we got excerpts earlier this year, after months of delay, but now we’ve asked for the entire document on an expedited basis.

Oct 27 2009

DHS Inspector General rips “TRIP” kangaroo courts

The DHS Office of the Inspector General (OIG) has released a redacted version of a report (OIG-09-103) that was provided to Congress in August, evaluating the TSA’s “Traveler Redress Inquiry Program” (TRIP). The TRIP name may be corny, but it’s also oddly accurate: it’s a system for inquiries, not answers, and as the OIG concludes it advertises more than it delivers and and often doesn’t result in real redress.

We commend Rep. Bennie Thompson, Chair of the House Homeland Security Committee, for requesting this report. It’s worth reading for giving one of the most detailed public descriptions to date as to the actual process by which a constellation of Federal agencies decide what entries to put on (and off) their “watch lists”, and who to allow to fly.

The OIG doesn’t consider the statutory, Constitutional, and international treaty-law right to travel, referring at one point to “the privilege of boarding an aircraft” (p. 68). But even within this perspective of travel as a privilege, not a right, the OIG concludes that the current redress and review procedure “is not fair” (p. 59):

This approach provides no guarantee that an impartial review of the redress complaint will occur. Instead, it ensures that the offices that initially acted on the TECS lookout and were the source of the redress-seeker’s travel difficulties will also be the final arbiters of whether the basis for the traveler’s secondary inspection is overridden…

DHS is required to offer aggrieved travelers a “fair” redress process. Impartial and objective review and adjudication of redress petitions is an essential part of any fair redress process. A process that relies exclusively on the review and consideration of redress claims by the office that was the source of the traveler’s grievance is not fair. CBP should modify its redress process in this area to provide for independent review.

TSA sends our FOIA request into a black hole

We learned yesterday from the U.S Postal Service that the TSA has been assigned a new zip code, 20598 (or at least so we were told on the phone by the USPS Customer Affairs department — we have no way to verify whether it’s true, or what the “correct” zip code should be), replacing the former 22202, and has instructed the USPS that they will not accept delivery of anything addressed to zip code 22202. But the TSA still lists 22202 as the zip code for FOIA requests on their Web site, and they have yet to publish a new Federal Register notice officially designating a new FOIA request address.

Our most recent request was under FOIA. But the same address is officially designated for TSA Privacy Act requests on the TSA website and in numerous System of Records Notices (SORNs), and we assume that Privacy Act requests have the same problems.

A FOIA request we sent (by Express Mail, with a request for expedited processing) 12 days ago has gone into a black hole: It hasn’t been returned to us as the sender, but there’s no record of it being delivered. Nor is there any written record of the TSA refusing to accept it or directing the USPS not to attempt to deliver it.

We haven’t been able to find out how long this has been going on, or how many sacks (truckloads?) of mail and how many tens or hundreds of FOIA requests may have been similarly dealt with.

Who’s watching the watchers at the DHS “Privacy” Office?

The Identity Project has joined with more than two dozen other organizations and individual experts from the Privacy Coalition in a joint letter to the House Committee on Homland Security, criticizing the DHS Privacy Office and its annual report and calling for better Congressional oversight of privacy-invasive DHS practices and the DHS Privacy Office itself.

There’s more about the letter, and the DHS response, today in the Washington Post.

We’re pleased to be part of this joint effort, and we hope Congress does more to rein in the DHS — although of course we are disappointed that DHS noncompliance with the law, the Constitution, and international treaties has made such a campaign necessary. The DHS consistently tries to exempt itself from major requirements of the Privacy Act, such as:

Obtaining personal information from the person affected, rather than from third parties.
Making personal information accessible to the person affected.
Giving people a serious opportunity to correct records about them at DHS (or collected and held by “private” entities at DHS behest and used by the DHS).
Only collecting information that is relevant to lawful purposes.
Only collecting information that is timely.
Only collecting information that is accurate.
Only collecting information about categories of individuals disclosed in formal “System of Records Notices” in the Federal Register.
Not collecting information about the First Amendment protected activities of US persons — such as who they are associating with, the books they are carrying or reading, the art or slogans or expressive insignia on their clothing or possessions, or where, why, how, and with whom they are assembling.

DHS claims for itself the ability to “exempt” itself from these statutory requirements. They do not cite any statute or court case that allows them to do so.

The DHS Privacy Office has been intimately involved in producing Federal Register filings that claim these exemptions from fundamental statutory Federal record-keeping requirements, and fail to properly disclose the extent of DHS systems of travel records. DHS travel records include information about numerous categories of people not mentioned in the SORNs, from people who pay for other people’s tickets to people whose phone numbers where entered in reservations of houseguests reconfirming flights, as well other information prohibited form collection by the Privacy Act. In this way, the Privacy Office has actively undermined the Privacy Act that they are sworn to uphold, and has been a party to criminal violations of the Privacy Act in the continued operation of these systems of records. We’ve gotten no response whatsoever to our repeated formal complaints of these crimes filed with the DHS Privacy Office.

Oct 21 2009

Softball questions for TSA nominee

President Obama’s much-belated nominee to head the Transportation Security Administration, Erroll Southers — faced only softball questioning at a confirmation hearing last week before the Senate Committee on Commerce, Science, and Transportation. None of the questions we’ve raised for the nominee about TSA policies and procedures, or about the philosophical or practical attitude of the nominee toward the right to travel, were asked by any of the Senators. Nor, despite the nominee’s background of as a policeman (L.A. airport police commander and former FBI agent), was there any exploration of the role of the TSA as the Federal police agency that most often interacts directly with people who are accused of no crime — literally the front lines of Federal policing of innocent citizens.

The nomination of Mr. Southers has also been referred to the Committee on Homeland Security, which plans to hold its own confirmation hearing after it receives further background information from Mr. Southers, probably in late November.

If you want to know whether the Obama Administration and its nominee plan to set a new course for the TSA, let your Senators and the members of the Homeland Security know that you want them to ask tough questions (“Do we have a right to travel? Should the obligations of travelers at TSA checkpoints be spelled out in publicly-disclosed regulations? Should no-fly decisions be subject to judicial review? Should we have to show ID to fly? Should the government keep records of our travels?”) before they vote to approve any nominee for TSA Administrator.