The broadest and most fundamental legal challenge to the waging of the US “War on Terror” through standardless, secret, extra-judicial government blacklists was filed today in the Federal court for the district in Virginia where the National Counterterrorism Center (NCTC), Terrorist Screening Center (TSC), and Transportation Security Administration (TSA) are headquartered. (Video backgrounder and interviews with plaintiffs and attorneys; more video interviews; PACER links)

Both an individual complaint (Elhady et al. v. Piehota at al.) and a class action complaint (Baby Doe et al. v. Piehota et al.) were filed. Presumably, that is so that  that the individual complaint for injunctive and declaratory relief could go forward even if class action certification  is denied, while the class action lawsuit could go forward even if the named plaintiffs are delisted. (An earlier, similar lawsuit was dismissed as moot after the plaintiffs were told they were no longer on blacklists.) Almost all of the individual complaint is repeated in the class action complaint, so if you are going to read just one, read the class action complaint which includes additional plaintiffs and their stories.

The case takes its name from the first of the listed representatives of the class of people on US government blacklists (“watchlists”):

Plaintiff Baby Doe is a four year old toddler.

He was seven months old when his boarding pass was first stamped with the “SSSS” designation, indicating that he had been designated at a “known or suspected terrorist.”

While passing through airport security, he was subjected to extensive searches,  pat downs and chemical testing.

Every item in his mother’s baby bag was searched, including every one of his diapers.

Let’s get one thing straight from the start: as we’ve noted before, calling the “Terrorist Screening Database” (TSDB) and similar lists “watchlists” is at best misleading euphemism, and at worst Orwellian doublespeak.

The government uses the term “watchlist” to avoid the stigma deservedly associated with the label “blacklist”, with its connotations of McCarthyism and J. Edgar Hooverism. A “watchlist” suggests a list of people who are being watched, a component of a system of surveillance or investigation. “Watchlisting” might, one presumes, lead to eventual intervention such as the criminal prosecution or an application to a court for a restraining order or injunction. But inclusion on the TSDB occurs after, not before, a decision to intervene is (secretly) made, and the consequences of listing in the TSDB are not limited to mere passive surveillance or watching. Each listing on the TSDB includes a “handling code” which determines what happens to the people who are deemed (typically by automated pattern-matching algorithms) to match the listing.

As the litany of horror stories in the complaint in Baby Doe v. Piehota makes clear, and as we’ve seen in previous incidents, being “watchlisted” can trigger  consequences ranging from denial of transportation by common carriers to freezing of bank accounts, inability to rent an apartment, or inability to get or keep a job, even with a private non-governmental employer.  As when a jury must decide which of a progression of more and less serious offenses to convict a defendant of, without knowing what sentences are mandated for any of those offenses, it’s not clear whether the Federal administrative staff in the secret rooms reviewing the secret dossiers of derogatory information and deciding which secret lists to put people on, or which secret “action codes” to assign them, even know what the full panoply of collateral consequences of their decisions will be.

The US government doesn’t have to issue binding orders to convert “watchlisting” into de facto blacklisting. As the complaint filed today points out, “Defendants disseminated the the records pertaining to Plaintiffs from its terrorist watch list to foreign governments with the purpose and hope that those foreign governments will constrain the movement of the Plaintiffs in some manner.” We saw one of the ways that can work during the trial of Dr. Rahinah Ibrahim’s challenge to her placement on the no-fly list.  The US government successfully used a “POSSIBLE NO BOARD REQUEST” message to induce a foreign airline to refuse to transport Dr. Ibrahim’s daughter, a US citizen, even though the US claimed that she was merely on a “watchlist” and not on the no-fly list.

It’s time to to reject the government’s “watchlist” doublespeak, and start calling the TSDB what it is: a government blacklist.

The first of the named defendants, Christopher Piehota, is the Director of the Terrorist Screening Center (TSC), an inter-agency entity responsible for the TSDB and nominally under the control of the FBI.

Most of the previous attempts to challenge actions taken against individuals as a result of their being listed in the TSDB have foundered on an elaborate shell game of buck-passing between businesses and government agencies. Airlines that refuse to transport blacklisted people (or those with similar names) say that they are only following (secret) orders from the government. Normal judicial review of actions by the TSA and CBP, the components of the DHS that issue no-fly orders (or refuse to issue permission for boarding pass issuance — the default is now “No,” not “Yes”) is precluded by a special law, 49 U.S.C. § 46110. No trials are allowed, and appellate courts are allowed to review these decisions only on the basis of the “administrative record” created by the DHS itself, which will show only that the DHS action was based on “watchlist” status as determined by the TSC, and not the basis (if any) for the FBI’s “watchlisting” decision.

The only previous cases in which District Courts have been able to consider no-fly decisions, and the only trial in a no-fly lawsuit, have been when the FBI, and not just the DHS or DHS components, has been named as a defendant. Today’s cases follow in that line, challenging the blacklisting decisions by the FBI.

To head off lawsuits of exactly this sort, the government has recently shifted nominal final authority over no-fly decisions from the FBI to the TSA. In theory, the government claims, the TSA could now decline to issue a no-fly order, even after the FBI has put someone on the no-fly list. It’s unclear, however, whether this has ever happened, or in what circumstances or on what basis it might happen. The possibility seems remote: Even the FBI, in practice, acts as a rubber-stamp for the decisions of FBI and DHS agents who make effectively final blacklisting decisions when they “nominate” people for listing in the TSDB. According to today’s complaint, 98.96% of the 468,749 people “nominated” for Federal “watchlists” in 2013 were added to those lists by the TSC.

The plaintiffs in the lawsuits filed today are represented by Gadeir Abbas, Lena Masri, and co-counsel from the Council on American-Islamic Relations, who have been leading the legal campaign against US government blacklisting, harassment, and interference with the rights and freedoms of Muslim and other Americans.

The TSA may try to prevent (some) people who can’t or won’t submit to virtual strip-searches from traveling by air, according to a Privacy Impact Assessment (PIA) update quietly posted on the DHS website a few days before Christmas:

TSA is updating the AIT [“Advanced (sic) Imaging Technology”] PIA to reflect a change to the operating protocol regarding the ability of individuals to opt out of AIT screening in favor of physical screening. While passengers may generally decline AIT screening in favor of physical screening, TSA may direct mandatory AIT screening for some passengers as warranted by security considerations.

The DHS and TSA may have hoped that nobody would notice this change in “operating protocol”, but the new requirement for some air travelers to submit to virtual strip-searches has already been challenged in at least two Federal Circuit Courts of Appeal, as discussed further below.

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The real test of whether the TSA is above the law isn’t whether TSA or DHS officials, flacks, or lobbyists claim that there are legal procedures which (hypothetically) permit judicial oversight of TSA actions. The real test is what happens when real people object to specific conduct by TSA staff and contractors, or private parties such as airlines acting at the behest of the TSA, and ask the courts to review and decide whether the TSA or its minions are breaking the law or violating the US Constitution.

Nobody has done more to test the real-world limits of TSA lawlessness than our friend Sai, who has been waging a one-person, pro se legal crusade against the TSA for its disregard of the Constitution and of a variety of Federal laws providing for transparency, fairness, and due process. Sai’s pending lawsuits against the TSA include one of the most important challenges anyone has made to the TSA’s claims of authority for secret lawmaking, as discussed below.

Remarkably, and unlike most of those aggrieved by TSA general disregard for the law as well as more specific misconduct, Sai has even had some success. But that limited success gives a sense of just how outrageous is the TSA’s disregard for the law, and how far it has to go before the courts will rein it in.

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Last Thursday, December 3rd, the US Senate rejected a proposal to authorize the Attorney General to deny firearms licenses or permits to anyone the Attorney General suspects to “be or have been engaged in conduct constituting, in preparation for, in aid of, or related to terrorism, or providing material support or resources for terrorism.”

Just three days later, President Obama made a somewhat similar proposal, but based on the no-fly list and thus — under the latest revisions to no-fly listing procedures — on the discretion of the Secretary of Homeland Security rather than the discretion of the Attorney General:

“Congress should act to make sure no one on a no-fly list is able to buy a gun. What could possibly be the argument for allowing a terrorist suspect to buy a semi-automatic weapon?” (Address to the Nation by the President, December 6, 2015)

Since the President asks, we’ll try to answer.

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Despite a recent decision by the European Court of Justice based in part on the inability of US courts to enforce US obligations under human rights treaties to which the US is a party, and despite a direct order from the President, most Federal agencies have still done nothing to create even administrative channels or points of contact for handling complaints of human rights violations.

Last April, we joined a broad coalition of civil liberties and human rights organizations in a public letter to some of the Federal departments engaged in the most egregious human rights violations — torture, extrajudicial killings, mass surveillance, denial of freedom movement, etc. — calling on them to carry out the President’s longstanding orders to designate points of contact responsible for responding to complaints that they have violated human rights treaties.

Six months later, there’s been no response to our letter and no publicly-disclosed indication that any of the agencies and departments to which it was sent has taken any action to fulfill its duties under Executive Order 13107, which was issued by President Clinton in 1998 and has remained in effect ever since.

This week, we joined in a follow-up letter, pointing out the failure to act and the heightened importance of showing a US government commitment to human rights, including the right to privacy, if the US wants to persuade other countries and their citizens that personal information transferred to via the US will be adequately protected against unwarranted mass surveillance.

The real lesson, of course, is that neither US citizens nor foreigners can rely on merely administrative mechanisms  for the protection of fundamental rights. If direct orders from the President aren’t enough to get Federal department heads even to receive and log human rights complaints, what could be?

As the UN Human Rights Committee recommended last year at the conclusion of its latest review of US (non)implementation of its human rights treaty obligations, what’s really needed is for Congress to enact effectuating legislation for human rights treaties to grant US courts — not the agencies that are the subjects of the complaints — the jurisdiction to hear and rule on complaints of violations of rights guaranteed by those treaties that the US has ratified and promised to honor and implement.

On October 26th, by a 2-1 vote, a  panel of judges of the 6th Circuit Court of Appeals has overruled a District Court’s decision that it lacked jurisdiction to hear a substantive challenge to the order by the “Terrorist Screening Center” (TSC) placing a US citizen on the “No-fly” list.

While the decision was based on arcane-seeming jurisdictional issues, and the government is already maneuvering to evade it and some other similar court decisions, it is a significant victory for the fundamental right to a trial in cases of challenges to no-fly orders.

The decision sends the lawsuit brought by Mr. Saeb Mokdad, represented by the Arab-American Civil Rights League,  back to the US District Court in Michigan where it was first filed more than two years ago.

The TSC is an inter-agency and inter-departmental entity, but the government has assigned nominal “ownership” of the TSC and its decisions — including, until recently, final authority for no-fly orders — to the FBI (a component of the Department of Justice).

At the same time, the government has argued that any challenges to the TSC’s no-fly orders must be made first through the kangaroo-court DHS TRIP administrative process, and then in a Court of Appeals that is allowed to consider only the “administrative record” of the TSA’s decision, as supplied to the court by the TSA itself.

Unlike some other people who have tried to challenge the government’s interference with their right to travel, Mr. Mokdad didn’t sue the TSA or DHS for implementing the TSC’s decision to put him on the no-fly list. Instead, he sued the TSC, FBI, and DOJ for ordering the TSA and DHS to put him on the no-fly list.

The government’s position is that no challenge to a no-fly order can be made with the agency that made the decision (the TSC/FBI/DOJ), and that any court review of the TSC decision must be based solely on TSA records (which will show, at most, that the TSA relied on a no-fly order from the TSC, and may not show anything about the factual basis, if any, or the criteria or procedures relied on by the TSC in its decision).

In its decision this week, the 6th Circuit rejected that duplicitous government position:

To the extent that Mokdad brings a direct challenge to his placement by TSC on the No Fly List, … he is challenging a TSC order, not a TSA order….  TSA does not determine who is placed on the No Fly List; TSC does. Notwithstanding the government’s attempts to characterize his claim as a challenge to TSA’s decision to deny him boarding, Mokdad makes clear that he is “challeng[ing] his actual placement on the No Fly List by the TSC.” R. 17, Appellant Br., 11. TSC is administered by the FBI. The fact that TSC is an inter-agency center that is staffed by officials from multiple agencies, including the FBI, DHS, Department of State, Customs and Border Protection, and also TSA, does not transform TSC’s order placing an individual on the No Fly List into an order of the TSA.

The 6th Circuit panel correctly held that the law assigning exclusive jurisdiction over challenges to TSA orders to Circuit Courts of Appeal, based on TSA administrative records, does not apply to challenges to TSC or other FBI orders — including no-fly listing orders.

The FBI’s hypocrisy in Mr. Mokdad’s case hasn’t been limited to its arguments in court.  The FBI has told Mr. Mokdad that it can’t tell him anything about why it put him on the no-fly list, and can’t even confirm or deny that he is barred from flying (although that’s obvious from the fact that he is denied boarding whenever he tries to fly). At the same time that the FBI officially declined to comment or give any information to Mr. Moktad, the FBI was happy to disclose derogatory alleagations about him to the local newspaper of record, the Detroit Free Press, in the form of leaks by “sources familiar with Mokdad” about what “the FBI suspects”.

Unfortunately, the next move in this legal chess game was already played by the government between the time that Mr. Mokdad’s case was argued a little over a year ago and when it was decided this week. While the Court of Appeals was contemplating its decision, the government shifted nominal final responsibility for no-fly decisions from the TSC/FBI/DOJ to the TSA/DHS, to try to bring them back within the scope of the jurisdiction-stripping statute, 49 USC §46110 (the Constitutionality of which is already being challenged in another no-fly case).

It’s unclear, in light of this evasive move by the government, what will happen to Mr. Mokdad’s case on remand. The next step will be discovery, and likely an assertion by the government in response that everything about no-fly decisions is a “state secret”.  Even if Mr. Mokdad eventually puts the FBI on trial, as has happened in only one no-fly case to date, he might win only a Pyrrhic victory, overturning the TSC’s no-fly order but then having to start from scratch, in a different court, with a new challenge to a new TSA no-fly order. Stay tuned.

If you exercise your right to travel, will the US government use your past travel as the basis for denying you the right to travel in the future?

Reading between the lines of the redacted public versions of recent filings in one of the ongoing legal challenges to US government no-fly orders, the answer appears to be, “Yes”.

Merely having visited the “wrong” place at the “wrong” time (as subsequently and secretly determined by the precogs who devise the government’s algorithms for predicting future terrorist behavior) can be sufficient to get you put on the no-fly list.

Did you visit Yemen in 2009? Now you might be on the no-fly list — for that reason, and maybe that alone.

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