Papers, Please! – Page 51 – The Identity Project

Apr 24 2013

Judge questions “state secrets” claim in “no-fly” case; orders government to disclose documents and produce witnesses

Former Secretary of Homeland Security Chertoff said repeatedly in public speeches that government “no-fly” orders should not be subject to judicial review, and that has remained the position of the Obama Administration whenever the issue has been raised in lawsuits by people who have been prevented from flying.

Rather than defend its decisions in the courts, the U.S. government has argued that it doesn’t has to do so.

The government’s first line of evasive of judicial review has been to argue that the courts lack jurisdiction to hear such cases, and/or that the plaintiffs have no “standing” to sue.

Some plaintiffs have been removed from the “no-fly” list just before their cases were to be heard, so that the government could argue that their complaints had become “moot” (despite the very real risk that they could be put back on the “no-fly” list the next day, or in the middle of their next trip abroad).

Should those arguments fail, the government could always invoke its “nuclear option”: a claim that the case could not proceed without disclosing “state secrets”.

That’s what the government did earlier this year in the case of Rahinah Ibrahim, after the 9th Circuit Court of Appeals twice rejected government appeals of the district court’s refusal to dismiss the case on grounds of jurisdiction or standing. (The case has drawn notice both in law review and international press commentary.)

But unlike most judges who have accepted “state secrets” claims uncritically, Judge William Alsup of the U.S. District Court for the Northern District of California has taken seriously his obligation, once such a claim is properly asserted by the government, to “independently determine whether the information is privileged“:

According to our court of appeals: “The court must sustain a claim of privilege when it is satisfied, from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose . . . matters which, in the interest of national security, should not be divulged. If this standard is met, the evidence is absolutely privileged….

After a careful review of the classified materials by the Court, this order concludes that a few documents could potentially be produced…. Defendants are ordered to show cause as to why the documents should not be produced.

In another order (also containing a useful summary of the proceedings to date) made public at the same time as this order to show cause, Judge Alsup granted portions of Ms. Ibrahim’s motions to compel the government to disclose documents requested on discovery, respond to interrogatories, and produce witnesses from the Department of State, the FBI, the National Counterterrorism Center, and the Terrorist Screening Center to be deposed by Ms. Ibrahim’s lawyers. While these depositions, if they happen, are likely to be greatly impeded by restrictions on questioning about “privileged” material, they would be the first time “no-fly” decision-makers would ever have been questioned under oath regarding their actions.

In his latest orders, Judge Alsup reminded the government forcefully that it is too late to make this case go away by removing any watchlist entries pertaining to Ms. Ibrahim:

Regarding the government’s challenge that plaintiff would not have standing were her name removed from the No-Fly (and Selectee) lists, the government has already lost this argument — twice. Our court of appeals held: “[e]ven if Ibrahim’s injury were limited to her inability to enter the United States, she would still have standing. . . . If Ibrahim’s name were removed from the TSDB, and thereby removed from the Consular Lookout and Support System, the State Department would be more likely to grant her a visa, given that it has relied on her alleged connection to terrorism as the basis for revoking her visa and denying her application for a new one.” … A prior order in this action likewise held: “Even if it turns out that she is not on the list anymore, she is nonetheless entitled to maintain this action to root out the residual effects and echoes in the various agencies resulting from the original erroneous listing.”

Plaintiff is entitled to discovery related to these issues and the government is the sole source of this information. To the extent that the documents she seeks reveal law enforcement procedures, the risks of disclosure are outweighed by the relevance of the information to plaintiff’s claims.

Judge Alsup seems to be losing patience with the government’s foot-dragging:

The government is ORDERED to produce updated interrogatory and request for admission responses in light of the Court’s recent discovery orders by MAY 2 AT NOON. Vague, dilatory, and otherwise uncooperative responses that lead to a successful motion to compel may result in an award of attorney’s fees, preclusion, and/or other appropriate sanction.

There’s also an intriguing passage in Judge Alsop’s latest order that might be a clue that the government’s mis-characterization of Ms. Ibrahim as a would-be terrorist was based, in whole or in part, on computerized facial image matching:

There are also a few documents and/or pages within documents that demonstrate the results of facial recognition software. These pages show matches between the plaintiff’s photograph and other photographs in government databases.

Unfortunately, we won’t be learning anything more about this. After reviewing these documents in camera (without showing them to Ms. Ibrahim’s lawyers), Judge Alsup found for unspecified reasons that:

These pages are not relevant to plaintiff’s claims and they tend to reveal the efficacy of government screening procedures. The government may redact any such pages from its productions.

Judge Alsup has ordered the government to deliver specified documents to Ms. Ibrahim’s lawyers, or file yet a third appeal of the same case to the 9th Circuit Court of Appeals, by May 2, 2013.

Apr 23 2013

Department of Justice prosecutes human rights violators? No.

Twenty years ago, President Clinton issued Executive Order 13107, which directed each member of his Cabinet to designate a single official responsible for insuring that complaints of human rights violations by their Department are reviewed and responded to, and that there be an annual inter-Departmental review of all subjects raised by such complaints (which of course would require keeping records of at least the subjects of such complaints).

So far as has been made public, Executive Order 13107 remains in force, and the U.S. State Department specifically cited it in a 2005 report to the United Nations Human Rights Committee as evidence that the U.S. had “implemented” the International Covenant on Civil and Political Rights.

But no points of contact for human rights complaints against Federal departments and agencies were ever made public, and our complaints of violations of the ICCPR were ignored by every federal official to whom we submitted them, even when we filed them in formal agency rulemaking dockets.

So we started filing requests under the Freedom Of Information act (FOIA) to find out what, if anything, had actually been done by various departments to carry out the orders the President had given in EO 13107.

As we have reported to the U.N. Human Rights Committee, it turns out that most of the departments we asked could find no record of what complaints of human rights violations they had received, or that they had ever done anything to implement EO 13107.

Although the deadlines for responses to our FOIA requests have long passed, we’ve been continuing to wait for belated responses from additional departments and agencies.

We recently received this letter in partial response to this request we made last August to the Department of Justice. It’s a routine-looking statement that a “thorough” search of the Human Rights Section of the Criminal Division of the Department of Justice “failed to locate any responsive records”.

Consider what that means, in light of what we asked for:

The Human Rights Section of the Criminal Division of the Department of Justice — the specific section of the specific agency that is supposed to be responsible for prosecution of those human rights violations that actually constitute crimes under U.S. law — has no record of who, if anyone, is supposed to be the point of contact to whom complaints of such violations can be submitted.

It has no record of how many complaints it has received, against which agencies those complaints were directed, or what issues those complaints have raised.

It is supposed to be responsible for prosecuting violators, but it has no record of “any policies, procedures, communications, or other records pertaining to the handling … of complaints of alleged violations.”

We look forward to the forthcoming questioning of the U.S. government by the U.N. Human Rights Committee concerning this issue.

Apr 17 2013

Federal court voids New York subway “ID rule”

In a case touching on several issues of concern for us here at the Identity Project, a Federal magistrate has struck down the N.Y. Transit Authority’s “ID rule” as unconstitutionally vague.

This was the right decision in the case, and it was issued on the right basis. And it articulates the sort of analysis and judgment that courts ought to apply to a range of other ID and related rules applicable to travelers, including in particular the TSA’s regulations requiring us to submit to “screening” as a condition of travel, without any definition of what constitutes “screening”.

Barry v. City of New York, et al. began with a complaint that focused on the right to take photographs and to be in public (in public areas of the New York City subway system) without identifying documents:

This is a civil rights action to vindicate the rights of the plaintiffs and of the public to take
photographs in the New York City subway system without fear of arrest and to be in public without identification documents.

But the case was decided neither on the basis of the right to take photographs nor the right not to carry or produce ID credentials — although those rights were implicated, and helped establish the applicable standard for vagueness — but on the basis of the vagueness of the underlying rule.

Apr 16 2013

U.N. Human Rights Committee releases list of issues it will raise with the U.S.

Last month, as we’ve reported, we met with the U.N. Human Rights Committee in Geneva to discuss our recommendations to the Human Rights Committee of issues to raise with the U.S. government during the Committee’s review this year of U.S. implementation of the International Covenant on Civil and Political Rights (ICCPR), an international treaty which guarantees, inter alia, the right to freedom of movement.

The Human Rights Committee has now posted a preliminary version of its List of issues to be taken up in connection with the consideration of the fourth periodic report of the United States of America. (This version is preliminary and unofficial only because the original English text has not yet been translated into all of the six official U.N. languages.)

The U.S. government is expected to respond to this short list of issues and questions before its appearance before the Committee in October 2013. But the Committee’s short list of issues is not limiting, and questions about other issues may be asked during the October session. That’s especially likely to be the case for issues of concern to members of the Committee who were not on the sub-committee that drafted the list of issues related ot the USA.

The specific U.S. violations of the right to freedom of movement raised in our submissions were not included on the Committee’s short list of issues. But the Committee did raise, and ask the Committee to respond to, the issue we raised (and which we uncovered through our FOIA requests) of US failure to implement Executive Order 13107 or authorize U.S. courts to review complaints of human rights violations.

Apr 15 2013

Can you fly without ID? Only if the TSA gives you permission.

While we’re picking on what the TSA posts in its official blog, let’s take a look at what the TSA said in another blog post earlier this week entitled, “Can you fly without ID?”

It’s an important question, but the TSA only hints at the answer.

One might expect that the answer to the question, “Can you fly without ID?”, would start with the ID rules. But no, there are no rules about this or anything else the TSA does. The TSA has “Standard Operating Procedures”, but (a) they aren’t rules, and the TSA can’t be required to follow them, and (b) they are secret. Gotta keep the terrorists (and the innocent travelers) guessing, apparently.

According to the TSA’s latest blog post:

If we can’t confirm your identity with the information you provide or you’re not willing to provide us with the information to help us make a determination, you may not be able to fly.

What does this mean?

Obviously, the only reason you might “not be able to travel” would be that the TSA would prevent you from doing so, or direct someone else — most likely the airline or local law enforcement officers — to do so. So the TSA statement amounts to an assertion of authority to issue no-fly orders.

But the TSA doesn’t say that you won’t be able to travel, only that you “may” not be able to do so. So the TSA’s assertion is of discretionary no-fly authority.

There is no requirement in any TSA regulation or law for would-be travelers to identify themselves or provide any information to the TSA. Nor is there any definition of what it might mean for the TSA to “confirm your identity”, or what information might be required for that purpose. So the TSA’s assertion is of administrative no-fly authority not derived from any public source and not bounded by any publicly-disclosed standards.

To sum it up, even while saying that yes, you might sometimes be allowed to fly without ID, the TSA is claiming the authority, in its standardless administrative discretion, to prevent you from flying if you don’t provide whatever information it asks for, or if it claims to have been unsuccessful (for whatever reason) in accomplishing whatever it thinks constitutes “confirming” your identity.

So much for the “right” to fly without ID, and for TSA compliance with its explicit statutory duty to treat air travel as a public right.

Apr 12 2013

TSA shows how interested it really is in public comments on its practices

On March 24th, 20 months after being ordered to do so by a Federal judge, the TSA quietly published a notice in the Federal Register “inviting” the public (that’s you!) to submit comments concering its use of ongoing use of virtual strip-search machines to determine who to subject to “enhanced” groping by checkpoint staff.

Does the TSA really want there to be a public written record of what you think of what it does?

You be the judge. Here’s what has happened.

Obviously, not many people read the entirety of the Federal Register every day. The TSA waited almost two weeks before publishing a notice about the public comment period on its official blog on April 4th. The TSA News Blog has a copy of that original TSA blog post.

Perhaps realizing that, given a chance, the public might actually tell the TSA what we think, the TSA deleted its blog post.

Then the TSA asked Google to delete its cached copy. Google complied, although government publications are in the public domain so there was no issue of copyright infringement or any other legal basis for the government to require Google to go along with the TSA’s rewriting of its Web history.

Flooded with questions about its attempt to expunge its blog post, and why it wasn’t publicizing the “public notice and comment”, the TSA put up another less informative blog post at 7:39 p.m. Washington time today, on a Friday after the close of business and after most daily news deadlines.

Unlike the original deleted TSA blog post, which at least had one link to the correct docket, the entry published today doesn’t include any direct link to the Notice of Proposed Rulemaking, the docket, the folder containing the supplementary documents and the comments submitted to date, or the page with the form to submit comments. Today’s TSA blog entry doesn’t even mention the name or URL of the domain on which the notice and comment form appear (Regulations.gov) or the docket ID number (TSA-2013-0004) that you have to search for to find any of this information if you don’t have a direct link to the correct docket.

All of which just goes to show how much the TSA fears having members of the public discover this opportunity to put our opinion of the TSA on the public record.

So please, tell the TSA (and the members of Congress, judges, etc. who will later be reading and relying on this record) what you think of its practices:

Tell the TSA that travel is a right, not a privilege to be granted or denied by the government.
Tell the TSA that searches or other conditions required for the exercise of your right to travel are subject to “strict scrutiny”. The burden of proof is on the TSA to show that they are actually effective for a permissible purpose (not just e.g. to catch drugs, which is not supposed to be the TSA’s job) and that they are the least restrictive alternative that will serve that purpose.
Tell the TSA how much it has cost you if you haven’t flown because you find the virtual strip-searches and/or the groping by checkpoint staff intolerable and/or traumatizing.
Tell the TSA that its current and proposed “rules” are unconstitutionally vague. You can’t tell what is and isn’t prohibited, or what is and isn’t forbidden, at TSA checkpoints. If there are to be any requirements or prohibitions on what you can and can’t do, the TSA needs to spell them out, publicly, so that you don’t have to get arrested to find out whether something is against the law or not.

You can get more ideas from this discussion we were part of last week on C-SPAN, and our previous article about the TSA’s notice and request for comment.

Don’t be put off by the long form. The only field on the comment form that is actually required appears to be your comment itself. You can type in the form, or attach longer comments as a file.

You can also submit comments by e-mail (to Chawanna.Carrington@tsa.dhs.gov), postal mail (to Chawanna Carrington, Project Manager, Passenger Screening Program, Office of Security Capabilities, Transportation Security Administration, 701 South 12th Street, Arlington, VA 20598-6016) , or fax (to 571-227-1931).

The deadline to submit comments is June 24, 2013.

Apr 11 2013

TSA continues to escape judicial review of “screening” practices

The lawsuit by the Electronic Privacy Information Center (EPIC) which has forced the TSA to allow public “comment” on TSA use of “virtual strip-search machines” (on the basis of a “petition for rulemaking” originally submitted years ago by groups including the Identity Project) is only one of the cases by individuals and organizations seeking to have the TSA’s “screening” practices reviewed by the courts.

Unfortunately, the TSA has still succeeded in avoiding any meaningful judicial review of its actions.

That seems likely to be the outcome of the latest TSA cases to reach U.S. Circuit Courts of Appeals:

Mar 30 2013

“Travel Surveillance, Traveler Intrusion” at the Cato Institute

Edward Hasbrouck of the Identity Project will be speaking at a free, public forum on Travel Surveillance, Traveler Intrusion from noon-1 p.m. EDT next Tuesday, 2 April 2013, at the Cato Institute in Washington DC (with a live webcast):

Travel Surveillance, Traveler Intrusion

[photo by kind permission of Jeramie D. Scott]

Video from the Cato Institute (recommended)

Video from C-SPAN

C-SPAN video on Youtube

Audio podcast (listen while viewing the slides)

Slides and notes (PDF)

Featuring Edward Hasbrouck, Journalist, Consumer Advocate, Travel Expert, and Consultant, The Identity Project (PapersPlease.org), Author of the book and blog, The Practical Nomad; and Ginger McCall, Director, Open Government Program, Electronic Privacy Information Center; moderated by Jim Harper, Director of Information Policy Studies, Cato Institute.

The United States government practices surprisingly comprehensive surveillance of air travel, amassing data about the comings and goings of all Americans who fly. Travel expert Edward Hasbrouck has been researching travel surveillance for many years. His findings reveal a stunning level of government surveillance, control of the traveler, and intrusion into commercial travel IT systems.

By April 2, the Transportation Security Administration will have begun a public comment process on its policy of putting travelers through imaging machines that can see under their clothes. Ginger McCall of the Electronic Privacy Information Center has been handling the litigation that prompted the D.C. Circuit Court of Appeals ruling requiring it to do so, and she will assess the proposed regulation and her renewed efforts to bring the TSA within the law.

If you can’t make it to the Cato Institute, watch this event live online at www.cato.org/live.

The Cato Institute asks that you pre-register if you plan to attend in person, but that’s just so they have an estimate of the expected attendance.

Hasbrouck will be presenting examples of what he found in his files when he sued the DHS for its records of his travels, what other travelers have found in theirs, and how the DHS obtains and uses this information to track us and to control who is allowed to travel.

As part of the same program, Ginger McCall of EPIC will be discussing the TSA’s proposed “rules” to require all air travelers to submit to virtual strip-searches. You have 90 days, until 24 June 2013, to tell them what you think of their proposal. (On the form to submit comments to the TSA, note that all of the fields except your comment itself are optional.) You can find some ideas for what to say in our previous article about the rulemaking.

There will be a live webcast, for those who aren’t in DC.

If you’d like to follow along, you can download the slides from Hasbrouck’s presentation as a PDF file.

[Update: C-SPAN broadcast the event live. Streaming video is available from the Cato Institute event archives (recommended), the C-SPAN archives, or on Youtube. The C-SPAN and Youtube camera angles don’t show the slides which illustrate Hasbrouck’s talk, so we recommend watching the Cato version and/or downloading the slides to follow along with the talk on C-SPAN. If you want to find out what’s in the file about you in the DHS “Automated Targeting System”, you can use the forms here. We would welcome a chance to review the government’s response, if you get one, and help you interpret it.]

Mar 26 2013

TSA proposes new “rules” for virtual strip-search machines

More than 18 months ago, a federal Court of Appeals ordered the TSA to provide formal notice and an opportunity for public comment on its “rules” for when travelers are required to submit to virtual strip-searches by machines that display images of our bodies as though naked.

Today, after seemingly endless foot-dragging that left it unclear if the TSA would ever comply with the court’s order (or would eventually be found in contempt of court for failing to do so), the TSA published its proposed rule in the Federal Register.

You have until June 24, 2013 to tell the TSA what you think of its proposal.

As Jim Harper of the Cato Institute points out, the proposed “rule” contains none of the (inadequate) limitations on the TSA’s virtual strip-search authority which were described in the TSA’s arguments to the Court of Appeals. (We’ll be talking with Jim and Ginger McCall of EPIC about this and related issues of “Travel Surveillance, Traveler Intrusion” at this lunchtime event at Cato in Washington next Tuesday, April 2nd.)

Rather than proposing a rule pursuant to which travelers would be entitled to opt out of the naked imaging (at the price of more intrusive groping of their genitals) , the TSA has proposed a rule in which, in addition to whatever else the TSA secretly defines as constituting “screening” in any particular case, all travelers are required, as a condition of travel by common carrier, to submit to virtual strip-searches whenever the TSA tells them to do so.

But that’s not the only glaring defect in the TSA’s Notice of Proposed Rulemaking. Read More →

Mar 25 2013

TSA takes a (small) step in the right direction

Earlier this month, the TSA announced that — although of course there are still no rules for what is and isn’t permitted at TSA checkpoints, travelers can expect that beginning April 25th we will be “permitted” (not entitled, “permitted”, since of course the exercise of our right to travel is at the TSA’s discretion) to bring tiny pocket knives and certain previously-prohibited sporting equipment onto commercial airplanes.

We could criticize the TSA’s press release for not going far enough, and for its arbitrariness. (We’d like to say that it’s a “policy” change, but we can’t, since there are no publicly-disclosed TSA checkpoint polices.) It’s pretty obvious that it doesn’t reflect any rational risk assessment. Why allow golf clubs, hockey sticks, and pool cues, but prohibit cricket bats?

But lest it be said that we never give credit to the TSA when credit is due: We congratulate the TSA for taking a small step toward saner “screening” practices.

Unfortunately, the TSA’s announcement has prompted a hysterical reaction from the opposite direction, with bills being introduced in both houses of Congress to direct the TSA to seize even the tiniest blades, and to protect us against the hockey-stick-armed terrorist hordes.

Ironically, the TSA defends itself with an argument that could equally be used against virtually all of the TSA’s continuing restrictions on carry-on items:

We have yet to see a single incident where a passenger was injured using a knitting needle or scissors. Small knives have been permitted in Europe for some time now, with no incidents that we are aware of. In fact, the GAO published a report that said there had been zero security incidents where these items had been used aboard an aircraft.

Passengers are allowed to bring bottles of water and many other items prohibited by the TSA onto flights in Europe and the rest of the world. We are aware of no incident in which anyone has tried to blow up or highjack an airliner using a bottle of water as a weapon. So if this is the TSA’s criteria, what is the rationale for the list of items that are still prohibited in carry-on luggage?

The fact is that searches at TSA checkpoints, like most other “administrative” searches, are designed as security theater — to make us feel safer rather than to make us be safer — and for a variety of other law enforcement purposes (mainly seizure of prohibited substances). Not on the basis of aviation security.

Would-be terrorists would have a hard time breaking through reinforced cockpit doors. Those with adequate cutting tools would probably be subdued (and possibly lynched) by passengers and flight attendants before they could do so. These, and not TSA checkpoints, are the real defenses against the bogeyman of “another 9/11”.

Even the prohibition on firearms on airline flights has more to do with gun control in general than with anything specific to aviation security. The TSA boasts that it finds loaded guns in carry-on bags every day. Does that suggest that every gun-toting traveler is a terrorist? Or that travelers have been flying with firearms every day for decades, almost entirely without incident? It’s hard to see how a gun poses more of a threat on an airliner than, say, in a crowd (or in a car) on a city street, where it’s perfectly legal.

We salute the saner voices among the secret decision-makers who determine the TSA’s secret non-rules. We urge them to stand firm in defense of our right to keep our sewing scissors and pencil-sharpening knives in our carry-on bags, and to resist the pressure to pander further to Congressional fears.