Surveillance State – Page 20

Feb 25 2014

DHS uses email intercepts to question US citizen about her sex life

At first blush, a lawsuit filed last week by the ACLU on behalf of a sociology professor at Indiana University wrongly detained by U.S. Customs and Border Protection seems to be about whether CBP is exceeding the limitations on its police powers, and detaining US citizens for purposes unrelated to customs and borders.

That’s bad, but unsurprising in light of the history of abuse of limited administrative search powers as a pretext for unrelated police purposes by CBP and other DHS components, notably the TSA.

What’s more unusual, however, is the complaint that the DHS is using email messages, presumably obtained from the NSA (unless the DHS has some email interception program of its own) as the basis for detention and interrogation of US citizens who aren’t trying to travel or ship any goods across US borders.

And what was the subject of this warrantless custodial interrogation of a non-traveling US citizen by armed “Customs and Border Protection” officers, based on email intercepts? Her sex life.

No, we’re not making this up.

Professor Christine Von Der Haar of Indiana University tells the story in her complaint, in an interview with the Bloomington Herald-Times in 2012 at the time of the bizarre CBP doings that led to her lawsuit, and in a video interview with the Indianapolis Star last week when the lawsuit was filed.

A few years ago, Dr. Von Der Haar, a US citizen, reconnected online with Dimitris Papatheodoropoulos, a Greek freelance transport and logistics manager and consultant who she had been friends with as a teenager, 40 years earlier, at an international school they both attended in Switzerland. After a year’s exchange of email, some of which Dr. Von Der Haar says was “flirtatious and romantic in nature”, Mr. Papatheodoropoulos arranged for a visit to Dr. Von Der Haar in Bloomington during her summer break from university teaching.

Von Der Haar believes her friend is a victim of a cultural misunderstanding. His emails signed off “I love you. I miss you. I kiss you.” Marriage, though, was beyond the pale for two adults in their mid-50s who hadn’t seen each other for decades, they say.

Sure, his language is flowery, but Von Der Haar laughs about it, slightly embarrassed: “We’re silly. He’s a Greek man. What can I say?.”

Mr. Papatheodoropoulos obtained a 10-year, multiple entry B1/B2 business and tourism visa to the US, allowing him to consult with business associates and negotiate contracts as well as visit friends. Since he works as a freelancer, and wasn’t sure how long he would be staying in the US, he shipped a computer and some other electronic equipment by air freight, but removed the hard drive with his data and carried it with him.

On arrival, Mr. Papatheodoropoulos cleared US customs and immigration and was admitted to the US without incident. But when Dr. Von Der Haar took him back to the Indianapolis airport a few days later to pick up the items he had shipped by air freight, they were referred to the CBP office at the airport.

According to Dr. Von Der Haar’s complaint, armed CBP officers detained both her and Mr. Papatheodoropoulos, took them into separate rooms, and stood blocking the exit door while they interrogated Dr. Von Der Haar about, “the nature of her relationship with Mr. Papatheodoropoulos … the contents of email messages that Dr. Von Der Haar and Mr. Papatheodoropoulos had sent each other … [and] if she and Mr. Papatheodoropoulos were having sexual relations.”

Given that Mr. Papatheodoropoulos had retained his hard drive that contained the emails, the only way that the Customs and Border Protection Agents could have reviewed the emails is for someone to have surreptitiously monitored the communications between Dr. Von Der Haar and Mr. Papatheodoropoulos and reported those communications to the agents questioning her. Defendant Lieba admitted that employees of the United States had read email communications between Dr. Von Der Haar and Mr. Papatheodoropoulos.

Dr. Von Der Haar was taken into the back room of the CBP office for questioning twice, for a total of about half an hour, while Mr. Papatheodoropoulos was questioned for “approximately 4 1/2 – 5 hours” before he emerged and was allowed to leave. His Greek passport (property of the Greek government) was confiscated without warrant, leaving him unable to leave the US even had he decided to cut his visit short, and he was “served with notice that a proceeding was initiated against him for removal from the United States” on the basis that:

You obtained your B1/B2 visa by misrepresenting your intentions to come to the United States to wit; It is your intention to immigrate to the United States, you abandoned your foreign residence, you intend to overstay your admission to the United States.

“None of this was true” according to the complaint. Mr. Papatheodoropoulos requested an expedited trial on these allegations, but “the removal action did not proceed. His passport was returned to him and he left the United States at the end of August of 2012 and has not returned.”

What are we to make of this episode?

First, CBP officers grossly exceeded their jurisdiction. Dr. Dr. Von Der Haar’s US citizenship was never questioned; she wasn’t trying to enter, leave, or ship and goods in or out of the country; and she was never accused of any crime. In general, immigration (as distinct from customs) offenses are handled by Immigration and Customs Enforcement (ICE) and the Border Patrol, not CBP. We’re curious what basis CBP will claim for its officers’ authority to detain and interrogate Dr. Dr. Von Der Haar or obtain her email.

Second, unless this incident has exposed some previously unsuspected DHS email interception program, it seems likely that CBP obtained copies of email between Dr. Dr. Von Der Haar and Mr. Papatheodoropoulos from the NSA. We know that the NSA is copying and archiving as much email as it can get its hands on. But was this email traffic flagged by the NSA as being of interest, and brought to the attention of the DHS? Or did the DHS ask the NSA to retrieve these email messages from the NSA archives, and provide them to the CBP? When, how, and on what basis, does the NSA “share” its email intercepts with the DHS?

We look forward to learning more. We won’t be surprised, though, if the government claims that intercepting email messages on grounds of “national security” and then handing them over to another government department in order to detain and interrogate an innocent US citizen about her sex life is a “state secret”.

Feb 24 2014

What’s wrong with mass surveillance of travel metadata?

In a live online question-and-answer session last month, NSA whistleblower Edward Snowden gave this explanation of what’s wrong with pervasive, suspicionless tracking and logging of our activities:

What’s the worst and most realistic harm from bulk collection of data?…

The worst and happening-right-now harm of bulk collection — which again, is a euphemism for mass surveillance — is two-fold.

The first is the chilling effect, which is well-understood. Study after study has show that human behavior changes when we know we’re being watched. Under observation, we act less free, which means we effectively *are* less free.

The second, less understood but far more sinister effect of these classified programs, is that they effectively create “permanent records” of our daily activities, even in the absence of any wrongdoing on our part. This enables a capability called “retroactive investigation,” where once you come to the government’s attention, they’ve got a very complete record of your daily activity going back, under current law, often as far as five years. You might not remember where you went to dinner on June 12th 2009, but the government does.

The power these records represent can’t be overstated. In fact, researchers have referred to this sort of data gathering as resulting in “databases of ruin,” where harmful and embarrassing details exist about even the most innocent individuals. The fact that these records are gathered without the government having any reasonable suspicion or probable cause justifying the seizure of data is so divorced from the domain of reason as to be incapable of ever being made lawful at all, and this view was endorsed as recently as today by the federal government’s Privacy and Civil Liberties Oversight board.

Fundamentally, a society in which the pervasive monitoring of the sum of civil activity becomes routine is turning from the traditions of liberty toward what is an inherently illiberal infrastructure of preemptive investigation, a sort of quantified state where the least of actions are measured for propriety. I don’t seek to pass judgment in favor or against such a state in the short time I have here, only to declare that it is not the one we inherited, and should we as a society embrace it, it should be the result of public decision rather than closed conference.

Most of the reporting on Mr. Snowden’s revelations has focused on the NSA’s collection and use of communications “metadata”: not the content of our phone calls and email messages, but information about the movements of those messages, such as from whom, to whom, and when they were sent.

But communications (message movement) metadata isn’t the only category of movement metadata being collected by the NSA. Documents leaked by Mr. Snowden reveal that the NSA is also hacking into airline reservation systems to collect what we would call, “travel metadata“: information about the movements of our physical bodies, such as from where, to where, and when we traveled. And of course, the DHS is also collecting this sort of data, and compiling it into lifetime “personal travel history” files.

Do you want the government to be able to demand an explanation, years later, of every trip you have taken, when, where, why, and with whom, even if at the time it was a perfectly legal journey and you were under no suspicion? We’ve been questioned by US border guards about innocuous years-old entries in our Automated Targeting System files, and it’s a disturbing experience. (It would have been even more creepy if we hadn’t previously requested and obtained our files, so we knew at least part of what was in the records about which we were being questioned.) That potential is inherent in any collection and retention of travel metadata.

Both message movement metadata and personal movement metadata are important, and neither should be the subject of government surveillance without a warrant supported by probable cause.

You might think that information about the movements of our physical bodies would be considered more intimate, and subject to greater protection, than information about the movements of our messages. In the US, however, none of the limited protections against communications surveillance apply to travel surveillance, except to the very limited extent that reservation messages are protected by wiretapping laws.

We’ll be in Geneva next month talking to the UN Human Rights Committee about how US government surveillance and control of travel violates the International Covenant on Civil and Political Rights. Other human rights organizations including Privacy Internatrional and Human Rights Watch will be talking to the Human Rights Committee about NSA surveillance of communications metadata. We think the same International Principles on the Application of Human Rights to Communications Surveillance should be applied to travel surveillance and travel metadata collection.

Feb 20 2014

DHS use of license-plate readers and vehicle location data

Secretary of Homeland Security Jeh Johnson has cancelled a request for proposals for a contract for the DHS to get access to vehicle location logs compiled by a commercial data aggregator from automated (optical character recognition) license-plate readers. The solicitation for bids was cancelled less than 24 hours after the first reports on the plan by mainstream news media, which prompted immediate public outrage. The DHS now claims that the RFP was issued without the awareness of agency “leadership”.

We’re pleased to see the DHS forced by public pressure to suspend, at least for now, even this small part of its plans to expand the suspicionless surveillance and logging of of our movements throughout the country.

At the same time, it’s critical for the public to understand that while the DHS has (at least for the time being) withdrawn its proposal to pay a contractor use commercial vehicle location logs for DHS purposes, the DHS itself continues to compile and maintain its own secret database of vehicle location logs compiled from its own license-plate scanners.

Feb 14 2014

Lessons from the first “no-fly” trial

Information about what happened in Ibrahim v. DHS – the first “no-fly” case to make it to trial — has trickled out gradually, making it hard to get a clear picture of what has happened.

The court was cleared at least ten times during the week-long trial for testimony, introduction of evidence, and legal arguments that the government claimed had to be kept secret. Many of the documents, exhibits, declarations, legal briefs, and even the judge’s opinion remain sealed, in whole or in part. Key information has to be pieced together by reading between the redactions, or from passing mentions in open court, the meaning of which only becomes clear in light of other fragmentary revelations.

Most mainstream media didn’t cover the trial, covered it only from the written record, or attended only small portions of the proceedings. We attended and reported on as much of the trial as was open to the public, but at times, we were the only reporter or member of the public in the courtroom.

The government still has until March 14th to decide whether to appeal, and the remaining sealed portions of the judge’s opinion aren’t scheduled to be released until April 15th. Key portions of Judge Alsup’s findings including what happened to Dr. Ibrahim’s US-citizen daughter are still secret. But in the meantime, what are our key takeaways from this trial?

(1) Congress needs to close the loopholes in the Privacy Act, which was enacted in 1974 to prevent exactly this sort of injustice, and would have done so but for its exemptions, exceptions, and lack of enforcement.

The purpose of the Privacy Act was to prohibit the government from using secret files as the basis for decisions about individuals, without allowing the subjects of those files to inspect and correct them. But agencies are allowed to exempt entire systems of records from these requirements. The DHS and the FBI (keeper of the Terrorist Screening Database which includes the “no-fly” list) have exempted their watchlists and blacklists and the allegedly derogatory information on which watchlisting and blacklisting decisions are based. In addition, although privacy is a human right protected by international treaty, the Privacy Act only protects U.S. citizens and residents. Other foreigners have no rights under this law, even when the U.S. government is using secret files to make decisions about their exercise of their rights.

(2) The watchlisting form and process incorporates presumptions in favor of surveillance and restrictions on travel, rather than presumptions of innocence and of travel as a right.

As was made clear in the latest redacted version of Judge Alsup’s findings, Dr. Ibrahim was placed on the “no-fly” list because FBI Agent Kelley left the box on the “nomination” form for “no-fly list ” blank:

This negative check-off form might look like poor user-interface design, but it actually exposes the real mindset of those who believe that travel is a privilege for which the traveler bears the burden of justification: “Better to restrict the rights of innocent people than to leave anyone off the watchlist.” Once the threshhold decision to place a name on a “watchlist” is made, the default is a categorical ban on all air travel and the widest possible dissemination of the blacklist information to other agencies and other countries’ governments (TUSCAN to Canada and TACTICS to Australia).

(3) There are no meaningful internal or administrative safeguards on no-fly and watchlist decisions. Administrative agencies cannot police their own secret internal actions. Transparency and independent judicial review are the only way to safeguard rights.

The DHS and FBI have claimed that internal administrative reviews of watchlist “nominations” are adequate safeguards against wrongful agency actions, and make judicial review unnecessary. In this case, Agent Kelley’s mistake was obvious on inspection, and would have been detected as soon as anyone checked whether the action ordered by the form was supported by the rest of the file. Nobody did so until after Dr. Ibrahim had been arrested and further mistreated when she tried to check in for her flight. If anyone “reviewed” or approved Agent Kelley’s nomination of Dr. Ibrahim to the no-fly list, they rubber-stamped the form without ever looking at the rest of the file, much less making an independent assessment of the factual basis for the decisions. This was the essence of Judge Alsup’s due process findings.

(4) The problem is not limited to the “no-fly list”, and there is no clear line between a “watchlist” and a blacklist. You can’t build a system of surveillance and individualized dossiers without it inevitably having consequences for people’s lives. The travel dataveillance system needs to be dismantled, and the whole database needs to be purged.

In the portion of her closing arguments conducted in open court, Dr. Ibrahim’s attorney, Ms. Elizabeth Pipkin, stated that Dr. Ibrahim and her daughter, Ms. Raihan Mustafa Kamal, had “the same status on the no-fly list”.

Presumably that common status was that neither woman was on the no-fly list. The government claimed that its “mistake” (in placing Dr. Ibrahim on the no-fly list) was corrected the same day as her arrest in 2005, and that it had not prevented Ms. Mustafa Kamal from flying to San Francisco to attend and testify at her mother’s trial.

Neither Dr. Ibrahim nor Ms. Mustafa Kamal are on the “no-fly” list. But when FBI Agent Kelley’s mistake in putting Dr. Ibrahim on the no-fly list was corrected, she was moved to, or left on, one or more watchlists — as Agent Kelley had intended. At some point Ms. Mustafa Kamal was also placed on one or more watchlists. Agent Kelly’s reasons for his intended decision to place Dr. Ibrahim (and perhaps Ms. Mustafa Kamal — we don’t know if she was watchlisted at the same time or separately, by whom, or why) on one or more watchlists remain secret, and were never disclosed to Dr. Ibrahim or her attorneys or reviewed by the judge. Because the government admitted that the no-fly listing was unwarranted and a mistake, the court never reached the question of what to do if the government claims that a listing was justified.

The “no-fly” list and the government’s other “watchlists” aren’t actually separate lists. Both are contained in the consolidated Terrorist Screening Database (TSDB). The only difference between a “watchlist” entry and “no-fly” entry is a flag associated with an entry on the consolidated list.

According to a post-trial government filing, “Kelley designated Dr. Ibrahim as ‘handling code 3.’… The majority of individuals in the TSDB are assigned the lowest handling codes – codes 3 and 4.” That same “status” — not flagged as a “no-fly” listing, and with one of the lowest “handling codes” — was sufficient to cause the DHS to send a message to the airline on which Ms. Mustafa Kamal had reservations. That message induced the airline (as it was intended to do) to refuse to fulfill its duty as a common carrier or allow Ms. Mustafa Kamal to exercise her right, as a U.S. citizen, to travel to the US.

A watchlist sounds like a list of people who are subject to passive monitoring. In practice, “watching” or surveillance isn’t aimless. It’s for the purpose of making decisions affecting individuals. In the case of Ms. Mustafa Kamal, some other “watchlist” status had the same negative consequence, denial of boarding by an airline, as “no-fly” status. Dr. Ibrahim’s watchlist status (and perhaps the fact that she had once been on the no-fly list) led to her being unable to obtain a US visa, even lafter she was removed from the no-fly list.

In the future, “watchlist” needs to be understood as a euphemism for a de facto blacklisto that allows a level of deniability: “You’re not on the no-fly list. We just advised the airline not to let you fly.”

There’s no hard line between passive surveillance and active interference with individual’s activities. This lesson is well known to the FBI: Sending the FBI to question your employer can get you fired, even if the FBI is in theory merely collecting information and doesn’t order or explicitly recommend that you be fired.

Surveillance is itself stigmatizing, and stigma has consequences. During the Ibrahim trial, the government argued, verbally and in written pleadings, that it had not stigmatized Dr. Ibrahim because it “never” disclosed Dr. Ibrahim’s status on its lists to “anyone”. But in fact, the government disclosed Dr. Ibrahim’s status on the list, and later that of her daughter, to the airlines. These are precisely the entities to which it would be most damaging to have this stigma (suspicion of posing a threat to aviation) disclosed.

(5) The US government is willing to lie to the courts to try to hide its mistakes and misconduct.

Before, during, and after the trial, officials including Attorney General Eric Holder and Director of National Intelligence James Clapper and lawyers for the government defendants claimed that to disclose anyone’s status on any watchlist, or the basis (if any) for assigning that status, would “cause significant harm to national security.”

This continued even after Judge Alsup and Dr. Ibrahim’s attorneys knew how Dr. Ibrahim had been placed on the no-fly list and that the government did not consider her to pose any threat to aviation.

Dr. Ibrahim’s lawyers sought to depose Attorney General Holder and DNI Clapper regarding their sworn declarations supporting the assertion of “state secrets” privilege by Holder and the other defendants. On motion of Holder and the defendants, Judge Alsup quashed the subpoenas for those depositions.

On its face, the government’s assertion amounts to a claim that to disclose to the public that Dr. Ibrahim was put on the no-fly list because an FBI agent failed to check a box on a form would harm national security.

Does the government really expect us to believe that would-be terrorists are deterred by their belief that the FBI is infallible, so that disclosing that the FBI once made a mistake would unleash the forces of terror?

We don’t think so. The government lied to cover up its mistakes and to protect itself against deserved criticism, not to protect national security.

Remember that the next time the government claims that something must be kept secret “because terrorism”.

Feb 13 2014

What’s it like to be a TSA checkpoint “officer”?

For more than a year, an anonymous blog called Taking Sense Away has been reporting on what it’s like to work at a TSA checkpoint as a “Transportation Screening Officer”.

Now that he is no longer a TSA employee, the author of the blog has revealed himself in an article in Politico (“Dear America, I Saw You Naked”) as Jason E. Harrington, a graduate student (currently working on a novel based on his time at the TSA) who worked for the TSA at O’Hare Airport in Chicago from 2007 until May 2013.

Thank you, Mr. Harrington. The TSA needs more whistleblowers, leakers, and honest story-tellers.

Sadly, there’s nothing really surprising in the Politico article, and we’ve been following the blog since its launch. We already knew this stuff was happening behind the scenes, such as TSA staff who know that what they are doing is security theater, and enjoy that theater by necking in the back room that’s deliberately designed to enable them to watch the naked images of passengers in private, assured that nobody can see them or catch them on camera while they are fooling around or laughing as passengers’ body-scans.

What we have now that’s different is someone with years of inside experience who who is prepared to put his name and stake his reputation on this testimony (and to provide a publication outlet for other TSA whistleblowers). Read it all and weep, and keep following for more revelations.

Jan 30 2014

9th Circuit overturns law making hotel guest registry an “open book” for police

Airlines and other common carriers aren’t the only travel companies that are sometimes required by governments to keep logs of their customers’ activities and make those records available to police.

Hotels, in particular, are often required or expected to spy on their customers for the (secret) police.

Sometimes, as in many European countries, this is mandated by national law. In the US, these requirements are more often encountered in state, county, and municipal codes.

The US Court of Appeals for the Ninth Circuit, after rehearing en banc, recently overturned one such local ordinance as being, on its face, a violation of the Fourth Amendment prohibition on unreasonable searches and seizures.

The ruling in Patel v. City of Los Angeles is indicative of what sorts of limits courts currently are, and aren’t, willing to put on these outsourced systems of government surveillance, and who has standing to challenge these requirements.

The case concerned Section 41.49 of the Los Angeles Municipal Code, “Hotel Registers and Room Rentals”, which requires that (1) any guest arriving without a reservation or paying for a room in cash must present a government issued identification document, (2) information about each guest including the details of the guest’s ID document and the license number of any vehicle parked on hotel premises by the guest must be recorded by the hotel in a written log book, card file, or electronic database, and (3) this guest register must be kept on the hotel premises, at or near the guest reception or check-in area, and “made available to any officer of the Los Angeles Police Department for inspection” at any time.

It’s only that last detail of the law — the requirement that the guest register be “made available” to any police officer without warrant, without the consent of the hotelier or the guest, without any requirement for suspicion or probable cause, and without any possibility of judicial review of police demands for the guest register — that was overturned by the 9th Circuit. The ID requirement in the L.A. ordinance was not challenged in this case.

The en banc majority in Patel v. City of Los Angeles starts by taking for granted that information provided by a guest in order to satisfy government conditions on the rental of a place to sleep is being provided “voluntarily”:

To be sure, the guests lack any privacy interest of their own in the hotel’s records. United States v. Cormier, 220 F.3d 1103, 1108 (9th Cir. 2000); see United States v. Miller, 425 U.S. 435, 440 (1976). But that is because the records belong to the hotel, not the guest, and the records contain information that the guests have voluntarily disclosed to the hotel.

Whatever validity this doctrine might have with respect to information provided “voluntarily” to a third party, a disclosure is scarcely “voluntary” when, as in this case, (a) it is required by law as a condition of availing oneself of the services of a place of public accommodation, and (b) the alternative to disclosure is sleeping in the street or on the sidewalk. (Under another provision of the same LA Municipal Code, it’s illegal to sit, lie, or sleep in the street or on the sidewalk In the City of Angels. But as part of a settlement following an earlier, now voided, ruling by the 9th Circuit, the LAPD has agreed not to enforce that provision of the law.)

People with no other place to sleep have a “choice” of whether to rent a room or walk the streets all night the same way people required to show government-issued ID in order to fly from Hawaii to the US mainland have a “choice” of whether to fly or walk on water.

But the 9th Circuit was able to find the law in violation of the 4th Amendment, despite this fictive “voluntariness”, because the lawsuit was brought by hotel owners, not hotel guests. It’s the hoteliers’ rights that the court found were violated by (involuntary) warrantless, suspicionless, extrajudicial police inspection of their business records about their guests.

We salute Naranjibhai Patel, Ramilaben Patel, and the Los Angeles Lodging Association for using their legal standing to challenge this law and insist that the police go to a judge and come back with a warrant.

Most travel companies are only too happy to collaborate with government agencies in spying on their customers. They’d prefer that governments pay them for their work as informers and data collectors, of course. But even without cash compensation, they benefit from being able to blame the government for intrusive demands for credentials and personal information, while getting a free ride to monetize this government-coerced informational windfall for their own marketing and other purposes.

We can find no record of any other case in which a travel company has challenged government demands for information about travelers. Nor have we found any travel company that makes public what government requests or demands it has received for data about its customers, how it has responded to those requests or demands, or how much information it has handed over. (Google publishes a “transparency report” for its Web services, but makes no mention of the exchanges of data between Google’s ITA Software airline reservations and PNR-hosting component and government agencies in the US or abroad.)

Police have plenty of ways to make life hard for the proprietors of mom-and-pop motels on skid row. If the plaintiffs in Patel v. City of L.A. could say “No” to big-city police demands for information about their customers and guests, and prevail in court, so could major hotel chains and other large travel companies. Travelers should demand that they do so.

Jan 28 2014

Does a US citizen need the government’s permission to return to the US?

Do you think that if you are a U.S. citizen you have a right to return to your country, and don’t need “authorization” from the US government?

Article 12, section 4 of the ICCPR (a treaty ratified by and binding on the US) provides that “No one shall be arbitrarily deprived of the right to enter his own country.” And the right of US citizens to enter the US has long been recognized as one of the most fundamental aspects of the Constitutional right to travel.

But it appears that’s not what the US government thinks:

[Click image for larger version.]

This bizarre “yes-fly” document, first made public today and first published here, was provided to lawyers for Dr. Rahinah Ibrahim on the fourth day of the week-long trial last month of Dr. Ibrahim’s lawsuit challenging her placement on the US government’s “no-fly” list.

The day before the trial began, Dr. Ibrahim’s US-born US-citizen daughter, Ms. Raihan Mustafa Kamal, was denied boarding on the first of a set of connecting flights she had booked from Malaysia to to San Francisco to attend and testify at her mother’s trial.

Lawyers for the government defendants, including US Customs and Border Protection (CBP), claimed that they had “confirmed that the defendants did nothing to deny plaintiff’s daughter boarding…. she just simply missed her flight. She has been re-booked on a flight tomorrow. She should arrive tomorrow.”

As it turned out, none of those claims were true. Ms. Mustafa Kamal hadn’t “missed” her flight. She showed up on time, but , but was denied boarding as a result of an email message from CBP to the airline. She wasn’t booked on any other flight, and she never made it to her mother’s trial.

At a hearing held the afternoon after the rest of the trial had concluded, Dr. Ibrahim’s lawyers presented a sworn declaration from Ms. Mustafa Mamal including a copy provided to her by Malaysia Airlines of the email message from CBP that led to her being denied boarding.

In response to Judge Alsup’s demands (“I want a witness from Homeland Security who can testify to what has happened. You find a witness and get them here…. I want to know whether the government did something to obstruct a witness”), the defendants brought the director of the CBP’s National Targeting Center, Ms. Maureen Dugan, to San Francisco to testify and face cross-examination about what had happened to Ms. Mustafa Kamal. At the defendants’ insistence, however, the courtroom was cleared of spectators for all of Ms. Dugan’s testimony and the remainder of that hearing.

The defendants also filed a declaration from Ms. Dugan. That declaration was filed “under seal”, but after his verdict Judge Alsup reiterated his order that a summary or redacted version of each sealed document, specifically including Ms. Dugan’s declaration, be made public.

Today the government defendants filed a redacted version pf Ms. Dugan’s declaration about what happened to Ms. Mustafa Kamal, including the “AUTHORIZATION TO TRANSPORT UNITED STATES CITIZEN TO THE UNITED STATES” reproduced above.

So now, as a result of this case and specifically as a result of CBP’s misconduct with respect to Ms. Mustafa Kamal, we have seen for the first time both a no-fly message and a yes-fly message.

What can we learn from these strange goings-on and communications?

The US government seems to think that even US citizens need the government’s permission to travel to the US. The CBP didn’t issue a reminder to airlines or other common carriers of their general obligation to transport all qualified would-be passengers, or sanction the airline for denying boarding to Ms. Mustafa Kamal despite her undisputed US birth and US citizenship.

Rather, the CBP issued an individualized, time-limited authorization to airlines to transport Ms. Mustafa Kamal to the US. Such affirmative, individualized “authorization” would make no sense unless the default, even for a US citizen, is, “NO.”

This is a blatant violation of US citizens’ Constitutional rights, and of US obligations as a party to the ICCPR.

(A somewhat similar “Transportation [Authorization] Letter” is discussed on p. 46 of the CBP Carrier Information Guide for airlines. But the example shown in the Carrier Information Guide is for a non-US citizen whose “Green Card” has been lost, stolen, or damaged while they are abroad, and who needs temporary evidence of permanent US residency to be able to return to the US to get her Green Card replaced. A Green Card — US permanent residency document — can’t be replaced outside the US, but a passport can. So it’s unclear why a US citizen would need such a document in lieu of an emergency passport, or why it would be considered better evidence of US citizenship than a passport.)

But why did CBP send a “possible no-board request” with respect to Ms. Mustafa Kamal?

Was Ms. Mustafa Kamal, like her mother, “mistakenly” placed on the no-fly list? Dr. Ibrahim’s lawyer — who knows Dr. Ibrahim’s status on or off the no-fly list, but is not allowed to disclose this information to her client or to the public — stated in open court during closing arguments that Ms. Mustafa Kamal’s status on the “no-fly” list was “the same as that of her mother”. But it seems more likely, from the rest of what has been claimed publicly, that neither of them are currently on the no-fly list. If Ms. Mustafa Kamal were, in fact, on the no-fly list, it would have been an out-and-out lie for government lawyers to tell Judge Alsup that their client CBP was not responsible for the airline’s denial of boarding to Ms. Mustafa Kamal.

A more likely explanation is that Ms. Mustafa Kamal and her mother are currently both on what was described euphemistically in pleadings made public in redacted form yesterday as a “watchlist”, but which is used in a manner that results in it functioning as a de facto blacklist with the same effect as the “no-fly” list. The email message sent to the airline didn’t say anything explicit about the no-fly list, but its natural and foreseeable consequence was that Ms. Mustafa Kamal would be denied boarding — as in fact she was.

Perhaps most disturbingly, this suggests that the government could nominally comply with Judge Alsup’s order to remove Dr. Ibrahim from the “no-fly” list, but keep her on a “watchlist” that has the same effect.

Only if Dr. Ibrahim gets a US visa (which seems unlikely) and tries to travel to the US, or if she tries to fly on a US-flag carrier (such as on United Airlines from Singapore to Hong Kong or Tokyo), or if Ms. Mustafa Kamal tries again to travel to the US, are we likely to learn more about what actual US government actions and restrictions either of them is subjected to. That, and not the label placed on any list, is what matters.

Jan 27 2014

Government finally admits plaintiff was on the “no-fly” list

A month and half after the conclusion of the first trial in any case challenging the US government’s “no-fly” list, and more than a week after Judge William Alsup’s decision that the rights of the plaintiff in the case, Dr. Rahinah Ibrahim, were violated, the government has finally admitted explicitly and publicly that:

Dr. Ibrahim was, in fact, on the US government’s “no-fly” list, which was shared with, among other entities, the Canadian and Australian governments. (There’s no mention of sharing of these lists with the UK or other European Union countries, perhaps because vetting against watchlists and blacklists of passengers on flights to, from, and within the EU is carried out by DHS employees posted in the EU, rather than by European governments.)
After being removed from the “no-fly” blacklist or blocklist, Dr. Ibrahim was placed on a government watchlist (included in the same database with the no-fly list) with a “handling code… allowing law enforcement officers to ask the individual probing but non-alerting questions, and search[] the individual’s passport.” While the “no-fly” list has often been incorrectly and euphemistically described as a “watchlist”, the treatment of Dr. Ibrahim, and these detailed admissions in particular, makes clear that the government itself distinguishes blacklisting/blocking (travel control) and watchlisting (travel surveillance) as different, although related, functions.
The watchlist entry for Dr. Ibrahim included “entry criteria codes” signifying “Corroborated identification as a group member by an informant or individual of unknown reliability” and “Frequents a documented group’s area, associates with known group members, and/or affects group dress, hand signals, tattoos, or symbols.” There’s still no public indication of the basis for these (false) conclusions. The FBI agent who “nominated” Dr. Ibrahim for inclusion on the “no-fly” list did so “mistakenly”. From the latest redacted filings and prior statements in open court, it appears that the agent thought he was filling out the form to nominate Dr. Ibrahim for mere watchlisting rather than inclusion on the “no-fly” blacklist/blocklist.
In closed court, “Agent Kelley testified that until his deposition on September 12, 2013 he had never had a watchlist nomination rejected and that in answer to the question ‘you had also never heard of anyone else having a watchlist nomination rejected?’ he answered ‘no.'” This belies the government’s claims that the basis for each such “nomination” is carefully reviewed before a name is added to a blacklist or watchlist.

Of course, Dr. Ibrahim already knew she was on the “no-fly” list, since but for her listing on this US government blacklist she wouldn’t have been denied boarding on her flight and arrested at SFO in 2005. But until now, both before and throughout the trial, the government refused to confirm this fact publicly, and claimed that it could not do so (or tell Dr. Ibrahim her current status on any blacklist or watchlist) without jeopardizing national security.

These admissions came in snippets between redacted passages in government briefs belatedly filed today in response to Judge Alsup’s latest reiteration of his standing orders for filing of public summaries or redacted versions of all pleadings and declarations filed “under seal” in the case.

The briefs filed today by the government defendants were due this past Friday, but were filed today with a declaration that the government’s lawyers (despite being located in the same building as the clerk’s office, where they could have filed them over the counter) were unable to file them on Friday due to technical problems with the court’s electronic document handling system:

A public redacted version of one more document previously filed only under seal, a declaration from the Director of the CBP National Targeting Center concerning what happened to Dr. Ibrahim’s daughter, a US citizen who was denied boarding when she tried to fly to the US to attend and testify at her mother’s trial, is due to be filed by the government tomorrow. There’s still been no public explanation of what, if any, valid basis US Customs and Border Protection (CBP) could have had for telling airlines that a US citizen might not be admitted to the US.

Jan 24 2014

Defendants in “no-fly” case ignore judge’s deadline to make their arguments public

Last week Judge William Alsup ordered the parties to Dr. Rahinah Ibrahim’s lawsuit challenging her placement on the US government’s no-fly list to file redacted public versions, by noon today, of the “sealed” briefs and replies they submitted following the trial in the case last month. These briefs included each side’s proposals of what factual and legal findings they believed the judge should make.

Shortly before noon today, Dr. Ibrahim’s lawyers filed redacted (but nonetheless interesting) versions of their sealed post-trial briefs:

More than an hour after the deadline, nothing had been filed by the defendants, and no explanation had been given. (See the comments below and follow-up articles for updates.) It remains to be seen if the defendants are merely late, if they are ignoring Judge Alsup’s order, or if they are on their way to the 9th Circuit Court of Appeals to seek an emergency writ or stay pending appeal.

Additional information about why Dr. Ibrahim’s daughter Ms. Raihan binti Mustafa Kamal, a US-born citizen, was prevented from flying to the US to testify at her mother’s trial, is due to be made public next Tuesaday, Jan. 28th. Judge Alsup has ordered the government defendants to file a redacted public version of the sworn declaration submitted by Ms. Maureen Dugan, the director of the CBP National Targeting Center and the sole witness at the post-trial hearing concerning what happened to Ms. Mustafa Kamal.

Jan 22 2014

Judge orders more disclosure about what happened to daughter of plaintiff in “no-fly” trial

One of the most disturbing aspects of the trial last month in Dr. Rahinah Ibrahim’s lawsuit challenging her placement on the US government’s “no-fly” list was what happened to Dr. Ibrahim’s daughter, Ms. Raihan binti Mustafa Kamal.

Ms. Mustafa Kamal, a lawyer and member of the Malaysian bar, was born in the US and is a US citizen. She accompanied her mother to the airport in Kuala Lumpur in March 2005 when, after having been allowed to travel from the US to Malaysia (and after being assured that the “mistake” that led to her arrest when she tried to leave San Francisco had been corrected), Dr. Ibrahim was prevented from board a flight back to the US.

The government defendants had been notified that Ms. Mustafa Kamal might testify at her mother’s trial, as an eyewitness to these events. But the day before the trial, when Ms. Mustafa Kamal tried to board a flight in K.L. that would connect her to San Francisco, she was denied boarding as a result of a message sent to the airline by US Customs and Border Protection (CBP), one of the defendants in the lawsuit. Ms. Mustafa Kamal never made it to the US for her mother’s trial.

The afternoon following the conclusion of the trial, Judge William Alsup held a hearing behind closed doors at which the government defendants presented a written declaration and in-person testimony about what happened to Ms. Mustafa Kamal from Maureen Dugan, Director of the CBP’s “National Targeting Center” in Reston, Virginia. That declaration and that testimony are likely to have provided the most detailed explanation yet provided in any US legal proceeding as to the mechanisms by which an entry on a “watchlist” is translated into messages to, and action by, an airline that denies boarding to an individual.

After this hearing, Judge Alsup offered Dr. Ibrahim opportunities to request that he re-open the case the presentation of evidence to allow Ms. Mustafa Kamal time to make another attempt to travel to the US to testify. But Dr. Ibrahim’s lawyers declined that offer:

At the closed hearing on Friday, December 6, 2013, regarding the travel difficulties of plaintiff’s daughter, Raihan Mustafa Kamal, the Court allowed plaintiff the opportunity to consider whether to re-open evidence for Ms. Mustafa Kamal to testify. Because of concerns about the safety and liberty of Ms. Mustafa Kamal were she to attempt to travel to the United States, plaintiff elects to proceed on the evidence presented at the trial.

As we noted at the time, the most obvious potential concern for Ms. Mustafa Kamal is that she might be allowed to fly to the US, but then not allowed to return to Malaysia, where she lives and works.

The transcript of the December 6, 2013 hearing, along with the rest of the transcripts of closed portions of the trial, remains sealed, at least for now, pending the possibility of government appeals. In addition, despite Judge Alsup’s orders that any sealed written filings in the case musty be accompanied by versions redacted for publication or public summaries, no public summary or redacted version of Ms. Dugan’s declaration has been filed.

Judge Alsup has now ordered the government defendants to file a public version of Ms. Dugan’s declaration about what happened to Ms. Mustafa Kamal by January 28, 2013. We expect that the government’s redactions will, as usual, be excessive and unjustified. But at a minimum, this will compel the government to further refine exactly what about this case it thinks need to be kept secret from the public, and why.

Papers, Please!

The Identity Project