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The Identity Project

Jul 06 2012

US continues to banish citizens by no-fly orders

The ongoing saga of attempted banishment of US citizens by their own government, through (secret, standardless, extra-judicial) administrative no-fly orders issued to airlines while those citizens are abroad, continues with two recent cases of San Diego college and university students.

In June, Keven Iraniha was denied boarding for a flight on which he held a ticket from Costa Rica to the USA, apparently (although of course US authorities would neither confirm nor deny this) because the US government had, for some unknown reason, put his name on a no-fly list.

Mr. Iraniha, a California native who was born and raised in the US and who had received his undergraduate degree from San Diego State University, was attempting to return with his family from his graduation  from a masters program in International Law and the Settlement of Disputes at the University of Peace established by international treaty under United Nations auspices in San Jose, Costa Rica.

As with other US citizens recently made the subject of no-fly orders to airlines, such as Yonas Fikre, the US government’s goal may have been primarily to pressure Mr. Iraniha to become an FBI informer, as a precondition to giving him “permission” to return to his country. After being denied passage home, he was questioned by the FBI about his recent travels including his visits to Iran, India, and Egypt.

Is international travel now considered inherently suspicious by the US government?

Unable to find out why all airlines serving the US had been forbidden to transport him home, Mr. Iraniha flew from Costa Rica to Mexico, and re-entered the US by land from Tijuana to San Ysidro (San Diego).

Ali Ahmed, a naturalized US citizen and San Diego City College student currently stranded in Bahrain after the US ordered airlines not to fly him home to the US, has not been so “lucky”.

Mr. Ahmed arrived in the US from Somalia with his family as refugees when he was seven years old. He was on his way from making the Hajj (pilgrimage to Mecca) to Kenya for a family reunion and arranged wedding there when he was denied entry to Kenya. He doesn’t know why, but it seems reasonable to suspect that Kenyan authorities acted at the behest of the US.

After being denied entry to Kenya, Mr. Ahmed was returned to Bahrain, where his connecting flight to Kenya had originated. But he was denied boarding on two flights from Bahrain to the US, even after being told by staff at the US Embassy to Bahrain that he should buy a new ticket and would be allowed to fly home.

Mr. Ahmed had never planned to do anything more than change planes in Bahrain, and has no citizenship or right of residency there. We suppose that as a US citizen he could, if necessary, take refuge in the US Embassy if Bahrain doesn’t let him stay and he can’t get to anywhere else. But in the circumstances, that might amount to self-imprisonment rather than sanctuary.

It would be difficult and extremely expensive fro Mr. Ahmed to return from Bahrain to the US while airlines are prohibited from transporting him into the US or through US airspace. Canada prevents people on the US no-fly list from flying to or from Canada. Almost all flights between Mexico and Europe or Asia pass through US airspace and have repeatedly been subjected to US no-fly orders.

For Mr. Ahmed to get home in spite of the US no-fly order would require him — if the other countries along the way allow him do so — to fly from Bahrain via Europe or Dubai to somewhere far enough south in Latin America (such as Brazil or Argentina) that the flight doesn’t cross over Florida, then on to Mexico, and then re-enter the US by land from Mexico.

For now, Mr. Ahmed is continuing to try to negotiate assurances from US officials that the US will withdraw its no-fly orders to airlines and allow him to fly home more directly to the US.

It’s past time for the US to recognize that restrictions like these on the rights of US citizens to  leave or return to the country of their citizenship, or to travel within it, are violations of their human rights.

Jul 05 2012

Does nudity “interfere” with the TSA’s groping?

As the TSA’s “screening” has become increasing invasive — searches, x-ray and microwave “whole body imaging”, genital groping, etc. — more and more people have suggested that, since we are required to submit to a virtual strip-search and/or groping of our genitals in order to obtain TSA permission to travel, we might as well show up at the TSA checkpoint already naked.

But what happens if a would-be traveler takes off their clothes at the checkpoint, so the TSA staff can see a little more clearly whether they are carrying any weapons or explosives?

Later this month John Brennan goes on trial before a county judge in Portland, Oregon, charged with violating Portland City Code 14A.40.030 (“indecent exposure”) for doing just that. Mr. Brennan has also been threatened by the TSA with the possibility of an administrative fine of up to $10,000 for violating Federal regulations (49 CFR §1540.109) by “interfering” with TSA screeners in the performance of their duties.

As we understand it from Mr. Brennan’s blog and other sources, here’s what happened:

On April 17, 2012, Mr. Brennan showed up — clothed — at Portland International Airport (PDX) for a flight to San Jose, CA.  He went through a metal detector without setting off any alarms. Since he declined to “consent” to a virtual strip-search, TSA staff also gave him an “enhanced pat-down” including the usual groping through his clothes, still finding no sign of anything contraband, dangerous, or threatening. But the TSA continued to detain Mr. Brennan at the checkpoint.

The TSA didn’t give Mr. Brennan any clear explanation of why he was still being detained, or what would happen next, but it seemed like their super-duper detectors had indicated that a chemical swab of his clothing or belongings had shown some indication of possible explosives.

At this point Mr. Brennan did the only thing he could have done to provide additional evidence to the checkpoint staff that he wasn’t hiding any weapons or explosives under his clothes, and to calmly and quietly protest the TSA’s treatment of him in the manner least likely to obstruct any further, more intrusive search they might want to conduct of his person or clothing: He took off his clothes. All of them. And when the TSA still wouldn’t let him go, but instead called the local police and told him to put his clothes back on, he peacefully declined to do so. At that point, he was arrested by Port of Portland police.

Mr. Brennan was originally charged with a misdemeanor violation of state law, ORS 163.465 (“public indecency”), but that charge — which would have entitled him to a jury trial, and would have required the prosecution to prove “the intent of arousing … sexual desire” — was dropped the next day.

That leaves the Portland “indecent exposure” ordinance and the TSA’s regulations against interfering with “screeners” in the performance of their duties.

Read More →

Jun 10 2012

Attorney General admits there’s a right to travel — but claims ignorance of violations

As picked up on by Josh Gerstein of Politico.com, Attorney General Eric Holder was questioned this week during an appearance before Congress (see this video beginning at 1:23:47) about whether people who want to enter Federal office buildings or courthouses, petition the government for redress of their grievances, or travel to Washington by plane to do so are, or can lawfully be, required to show government-issued photo ID credentials.

Holder did admit that travel is a Constitutional right: “Yup. The Supreme Court has said that the right to travel has a Constitutional dimension.”

But he claimed not to be aware that government-issued ID credentials are required of visitors to the Justice Department building that houses his own office, or — as the 9th Circuit Court of Appeals upheld in 2007 in Foti v. McHugh — from those who seek to enter Federal courthouses (even people who are themselves parties to cases and representing themselves pro se).

Asked about what, if anything, his department has done to investigate discriminatory application of such ID requirements for would-be petitioners for redress of grievances, Holder repeatedly changed the subject to ID requirements for voters, as if the ability to change the government through voting made it unnecessary to afford any means of redress of grievances between elections.

We’re still waiting for any response to our complaints of violations of the right to travel by Federal agencies — complaints that it should be Holder’s responsibility to investigate.

One of the most problematic of Federal ID requirements is the requirement to show ID to get into the Federal buildings that house most State Department passport offices. Because State Department regulations (22 C.F.R. § 51.28) expressly entitle passport applicants to establish their identity through an identifying witness, without any prerequisite ID documents or credentials, getting a passport is often easier for citizens without documents than getting a drivers license or state ID, and can serve as the first step in “bootstrapping” state ID or other documents.

Unfortunately, many Post Offices and other passport acceptance offices are unfamiliar with the “identifying witness” option, which isn’t mentioned in most State Department passport application references. The only places you can count on the witness affidavit form being available and accepted are State Department passport offices, almost all of which are located in buildings that can no longer be entered without first showing government -issued ID credentials.

Catch 22.

Jun 08 2012

Should the IRS control international travel by US citizens?

This week the US House of Representatives has been debating whether to accept a proposal, introduced by Sen. Barbara Boxer (D-CA) and already approved by the Senate, which would give the IRS extra-judicial administrative authority and mandate to prevent a US passport being issued or renewed, and to have any existing US passport revoked, for anyone alleged by the IRS to owe more than US$50,000 in “delinquent” taxes.

Since 2009, Federal law and regulations have forbidden US citizens from entering or leaving the US, even by land, without a passport. So if the proposal now in Congress is approved by the House and signed by the President, the mere allegation by the IRS of a delinquent tax debt will effectively constitute confinement of the accused within the borders of the US (if they are in the US at the time), or indefinite banishment from the US (if they are abroad), by IRS administrative fiat.

The State Department would have standardless administrative “discretion” to issue a passport to an accused tax delinquent “in emergency circumstances or for humanitarian reasons”, but would never be required to do so. And the State Department could use the offer of such a discretionary waiver, or the threat not to grant such a waiver, as a carrot and/or stick to induce the accused citizen to, under duress, waive their right to remain silent or other rights, pay a disputed tax bill (as a de facto “exit tax” of the sort the US used to protest when it was imposed by a Communist government on its citizens), “cooperate” with US spying, or do whatever else the government wanted.

What’s missing from this proposal, as from the rest of the State Department’s passport rules and procedures, is any recognition that travel is a right, not a privilege that can be granted or denied at the whim of the government. Under the First Amendment and international law, US citizens have a near-absolute right to leave the US (or any other country) and to return to the US.

The current proposal to ban international travel to or from the US by US citizens accused of “tax delinquency” is included in S. 1813, a generally-unrelated highway funding bill. S. 1813, including the provisions to deny passports to alleged tax delinquents, was approved by the Senate in March.

The parallel House bill, H.R. 4348, doesn’t include any provisions for passport denial, and differs in many other respects from the Senate bill. President Obama has told Congress that for other reasons he would probably veto the House bill, but hasn’t yet made any official statement on the Senate bill or the passport denial proposal.

This week the House has been debating instructions to its members of a conference committee charged with negotiating a compromise between the House and Senate bills.

Tell your Representatives to reject the passport denial and revocation provisions of the Senate bill, or any compromise bill that includes them. Alleged “tax delinquency” is not sufficient or permissible grounds for anyone to be confined within the borders of the US, or banished from their country.

May 10 2012

Is the problem with the TSA the leader? Or the concept?

Rep. Paul Broun, MD, a Georgia Republican member of the House Committee on Homeland Security, has called for the resignation of the Administrator of  the TSA, John Pistole.

We agree with Rep. Broun that “The time has come for serious action to be taken” with respect to the TSA, that “drastic change” is required, and that, “The time for that change is now.” And we agree that those at the top as well as the bottom of the bureaucratic hierarchy need to be held accountable.

Most of all, we’re pleased to see Rep. Broun put civil liberties first in his letter to TSA Administrator Pistole requesting his immediate resignation:

Americans can no longer tolerate the flagrant violations of their civil rights which are occurring at airports nationwide in the name of “security.”

Pistole’s resignation, now or later, would accomplish nothing unless Senators ask more serious questions (we have a few suggestions) before confirming a new TSA Administrator.

As long as the TSA is allowed to wield power over the people (and our exercise of our right to travel)) through secret, extra-judicial administrative fiat, airports and other transportation facilities will remain the domestic counterpart of Guantanamo: law-free zones in which even the most friendly-faced and “respectful” leadership can do little to change the essential illegality of the agency’s operations.

More is required, we think, than another turn of the revolving door on the office of the TSA Administrator.  If the TSA is retained, it needs to be brought within the rule of law.  We have some specific suggestions for interim reform of the TSA’s policies and practices, not just its personalities. But fundamentally, we agree with participants in the White House’s own public poll, whose first choice of requested actions for the President was to abolish the TSA entirely.

May 08 2012

US retaliates against tortured “no-fly” exile with trumped-up criminal charges

For two years, FBI agents tried to recruit Yonas Fikre — a US citizen who came to the US with his family as refugees when he was 12 years old — to infiltrate and inform on members of the congregation of a mosque he attended in Portland, Oregon, as part of an FBI entrapment “sting”.

When Fikre declined to become an FBI snitch or “agent provacateur”, the FBI had him put on the US “no-fly” list while he was overseas, and told him he would only be taken off the list so he could return to the US if he “cooperated” with their investigation of his fellow worshipers. Fikre again said, “No.”

Then the US government tightened the screws on Fikre, more or less literally, by having its “friends” in the dictatorial monarchist government of the United Arab Emirates arrest Fikre, who was in the UAE on business, torture him, and again tell him that the only escape from his predicament was to cooperate with the FBI.  Eeven under torture, Fikre stkill said, “No.”

Eventually Fikre’s torturers in the UAE gave up, released him from prison, and kicked him out of their country.  We can only assume that they decided he was innocent, or at least knew nothing incriminating about anyone to reveal, and wasn’t going to talk to the FBI no matter what they did.

Unable to return to the US because he was still on the “no-fly” list, Fikre then went to Sweden, where he has relatives (refugees who went to Sweden when his immediate family went to the US).

Throughout all this, Fikre was never charged with any crime in any country, as we presume would have happened if the FBI had evidence of any crime to use as leverage in their recruiting of Fikre as an informer.

Now Fikre has been indicted in the US, less than three weeks after he went public with his story of exile by, and torture at the behest of, the government of his own country, and announced that he has sought asylum in Sweden in order to remain there, since he can’t come back to the US.

“Frankly, I think it’s retaliation and retribution,”  one of Fikre’s US attorneys is quoted as saying. Another of his lawyers calls the charges retaliation and “specious”. From everything we’ve seen about the case, we agree.

Fikre is charged with the pettiest of purely procedural violations of Federal law. Allegedly, when he transferred money from the US to Dubai to fund a business he was starting there, he had the money sent in smaller increments rather than all at once, in order to keep each of the amounts below the $10,000 threshold above which he would had to report them to the US government.

For having “structured” his legal personal business so as to avoid having to inform on himself to the Feds who he knew already wanted him to inform on his associates, Fikre has now been indicted for the Federal crime of “structuring”.

Fikre’s brother and another alleged associate, but not Fikre, were also indicted for alleged violations of tax laws.

Fikre’s business was legal. Fikre paid his taxes. The money transfers were themselves legal, and each of them was small enough that Fikre wasn’t required to report them individually. If Fikre had filed an aggregate report on the total of the transfers, everything he did would have been legal.

Fikre had good reasons to fear additional interrogation or worse retaliation if he told the Feds any more about his affairs. If he was “structuring” his finances to avoid self-surveillance requirements, he was also structuring them to try (unsuccessfully, it turns out) to avoid exposing himself to further persecution by the US government. Should this be a crime?

It’s hard to avoid the conclusion that Fikre’s real “crime” is exposing US torture and exile of its own citizens, and embarrassing the US by seeking asylum abroad. Not that he had much choice about seeking asylum somewhere, since he couldn’t come back to the US, or live and work anywhere else indefinitely as a tourist or temporary visitor.

It remains to be seen whether the US will seek to have Fikre arrested and extradited from Sweden, or will merely hold the threat of criminal prosecution over him for life (the clock stops on the statute of limitations while you are out of the country) if he ever manages to return to the US or visits another country sufficiently “friendly” to the US government to arrest him.

Shame on  the US, and best wishes to Mr. Fikre for success in his application for asylum in Sweden.

Apr 27 2012

US citizen exiled to torture by “no-fly” list seeks asylum in Sweden

A US citizen who was imprisoned and tortured for three months by the US government’s “allies” in Abu Dhabi and Dubai, and who can’t come home even after being released from the UAE because the US government has put him on its “no-fly” list and forbidden any airline from transporting him to the US, has requested political asylum in Sweden.

Yonas Fikre came to the US with his family in 1991, when he was 12 years old, as a refugee from Eritrea, and later was naturalized as a US citizen.

In April 2010, while Fikre was abroad on business and visiting family, FBI agents contacted him to try to recruit him as an informer and agent provacateur in an FBI entrapment “sting” directed at members of a mosque Fikri had attended in Portland, Oregon. Fikre declined to become a snitch and infiltrator for the Feds, but the FBI followed up with implicitly threatening email messages that, “[T]he choice is yours to make. The time to help yourself is now.”

In June 2011, he was arrested in Abu Dhabi by plainclothes UAE police, who held him for three months in a secret prison in Dubai while torturing him, interrogating him about members of the Portland mosque, and telling him that he had been put on the US no-fly list and that he would never be released from their custody and torture or allowed to return to the US unless he “cooperated” with the FBI.

Eventually, he was released from detention and allowed to leave the UAE in September 2011 , but told the US still wouldn’t let him go home.  He’s been living in Sweden, where he has other relatives, since then, and has now applied for political asylum on the grounds that he has been effectively exiled from the US by being placed on the US no-fly list (in violation of his human rights under Article 12 of the ICCPR, to which the US and Sweden are both parties) and that his detention and torture in the UAE, presumably at the behest of the US government and/or its agents, gives him reasonable grounds to fear further mistreatment even if he were allowed to return to the US.

This isn’t the first time that the US government has used the no-fly list against US citizens as an as an instrument of exile. Here are just a few of the incidents, among others, that have previously made the news:

It isn’t just US citizens who have been denied their right to return home by the US no-fly list. As recently noted by the 9th Circuit Court of Appeals, the US no-fly list is used by US-flag airlines on flights elsewhere in the world, and is shared with at least 22 foreign governments. Some of the foreigners prevented from returning home, or from traveling to countries other than the US, as  a result of US no-fly orders or “no-board recommendations” from US “advisors” stationed at foreign airports, include:

  • Dawood Hepplewhite: UK citizen stranded in Canada and denied boarding on a flight home to the UK in February 2011.
  • Mohammed Khan: Canadian citizen stranded in Germany and denied boarding on a flight home to Canada in March 2011.
  • Moazzam Begg: UK citizen and former Guantanamo prisoner never charged with any crime in the US, UK, or any other country; denied boarding on a flight to Canada for public speaking engagements in May 2011.
Apr 26 2012

No-fly case goes forward against Feds, while SFO pays through the nose for false arrest of traveler

We’ve noted previously that, as the DHS increasingly relies on state and local law enforcement officers and private contractors to carry out its extrajudicial “no-fly”, search, and surveillance orders, those individuals and their employers face a growing risk of liability for their actions against travelers.

Case in point: Ibrahim v. DHS et al.

We’ve reported previously on some of the earlier stages in this case, originally filed in 2005 by a Malaysian architect, then a doctoral candidate at Stanford University and today (having received her Ph.D. from Stanford in absentia) a professor and Dean of the Faculty of Design and Architecture at UPM in Malaysia.  When she tried to check in at San Francisco International Airport (SFO) for a flight back to Malaysia to give a presentation about her Stanford research, she was arrested by SFO airport police (a branch of the San Francisco police force) on the direction of a private contractor who answered the phone at the TSA’s Transportation Security Operations Center (since renamed — we are not making this up — the “Freedom Center”).  She was told she was on the “no-fly” list, but was allowed to fly home to Malaysia the next day, after which her US student visa was revoked.

Through her lawyers in the US, Ibrahim sued the various Federal agencies involved in no-fly decisions; their individual officials, employees, and contractors; and the San Francisco city and county, airport, police department, and individual police officers, for violations of her 1st and 5th Amendment rights.

The case has a had a tortured procedural history. After seven years, there has been no discovery, fact-finding, or rulings on any of the substantive issues. The case has, however, survived a series of District Court rulings and two appeals to the 9th Circuit Court of Appeals, first in 2008 on which, if any, Federal court (district or circuit, in San Francisco or DC) had jurisdiction to hear the case, and then in February 2012 on whether Dr. Ibrahim had standing, as a non-US citizen now residing (involuntarily) outside the US, to bring her Constitutional claims in US courts.

The latest ruling by the 9th Circuit in Ibrahim v. DHS, which allows the case against the government and its agents to go forward, is significant for its rejection of several of the Federal government’s key arguments against judicial review of no-fly decisions:

Read More →

Apr 25 2012

European Parliament approves PNR agreement with the US. What’s next?

[MEPs picket outside the plenary chamber to ask their colleagues to say “No” to the PNR agreement with the US. (Photo by greensefa, some rights reserved under Creative Commons license, CC BY 2.0)”]

Last week — despite the demonstration shown above (more photos here) by Members of the European Parliament as their colleagues entered the plenary chamber for the vote — the European Parliament acquiesced, reluctantly, to an agreement with the US Department of Homeland Security to allow airlines that do business in the EU to give the DHS access to PNR (Passenger Name Record) data contained in their customers’ reservations for flights to or from the USA. (See our FAQ: Transfers of PNR Data from the European Union to the USA.)

The vote is a setback for civil liberties and the the fundamental right to freedom of movement, in both the US and Europe.

But the vote in the European Parliament is neither the definitive authorization for travel surveillance and control, nor the full grant of retroactive immunity for travel companies that have been violating EU data protection rules, that the DHS and its European allies had hoped for.

Many MEPs voted for the agreement only reluctantly, in the belief (mistaken, we believe), that it was “better than nothing” and represented an attempt to bring the illegal US surveillance of European travelers under some semblance of legal control.

Whatever MEPs intended, the vote in Strasbourg will not put an end to challenges to government access to airline reservations and other travel records, whether in European courts, European legislatures, or — most importantly — through public defiance, noncooperation, and other protests and direct action.

By its own explicit terms, and because it is not a treaty and is not enforceable in US courts, the “executive agreement” on access to PNR data provides no protection for travelers’ rights.

The intent of the US government in negotiating and lobbying for approval of the agreement was not to protect travelers or prevent terrorism, but to provide legal immunity for airlines and other travel companies — both US and European — that have been violating EU laws by transferring PNR data from the EU to countries like the US.  The DHS made this explicit in testimony to Congress in October 2011:

To protect U.S. industry partners from unreasonable lawsuits, as well as to reassure our allies, DHS has entered into these negotiations.

But because of the nature of the PNR data ecosystem and the pathways by which the DHS (and other government agencies and third parties outside the EU) can obtain access to PNR data, the agreement does not provide travel companies with the full immunity they had sought.

Most of the the routine practices of airlines and travel companies in handling PNR data collected in the EU remain in violation of EU data protection law and subject to enforcement action by EU data protection authorities and private lawsuits by travelers against airlines, travel agencies, tour operators, and CRS companies in European courts.

Why is that?

Read More →

Mar 07 2012

All US police to get access to international travel records?

This just in from the “All international travelers are suspected terrorists” department:

In response to questions (see the video at approx. 37:00-38:30) from members of a House Homeland Security subcommittee during a hearing yesterday, DHS Deputy Counter-Terrorism Coordinator John Cohen said that, as part of the Orwellianly-named “Secure Communities” program, local police will soon be receiving the result of a check of DHS international travel logs, automatically, for every person arrested anywhere in the US for even a minor offense. Local police will be able to run checks of travel records for “nonoffenders” — innocent people — as well.

According to one report:

Under the forthcoming plan, authorities will be able to instantly pull up an offender’s or nonoffender’s immigration records and biometric markers, he said. The government already is able to vet visitor records from multiple databases for national security and public safety threats, Cohen added.

“So, today, if someone is arrested for any type of offense, part of the query that will take place will be an automatic check of immigrations systems — it will be a check of TECS as well,” he said. “The chances are greatly enhanced that today if somebody were to be booked on a minor drug offense or a serious traffic violation even, the person’s immigration status would come to our attention.”

Here’s what the result of a TECS check might look like: logs of (legal) international travel, and notes from customs inspectors about whatever events they considered noteworthy (again, including events that were entirely legal).  We got these linked examples before DHS exempted TECS from most of the access requirements of the Privacy Act. You no longer have any legal right in the US to find out what’s in the TECS records about yourself. And while TECS was being described to Congress as an immigration enforcement system, these examples are from TECS records about a US citizen. Logs are kept in TECS of everyone who travels to, from, or via the US — even US citizens.

TECS used to include complete airline reservations (Passenger Name Records). PNR data has been re-categorized as a separate DHS system of records, the “Automated Targeting System”. But TECS records include the traveler’s name and the airline code, flight number, and date of each flight, which is sufficient information to retrieve the complete PNR from the airline or the computerized reservation system (CRS) that hosts it. This airline data is obtained from APIS transmissions, which the US has claimed to the European Union are used only for a narrow range of purposes.

Soon, it will be as easy for any local law enforcement officer anywhere in the US to run a “TECS check” of these records about you as it is today for them to run a check of your criminal record from NCIC. Except that the records in TECS are records of your exercise of First Amendment rights of freedom of assembly, not records of criminal convictions.

Or should we be asking if the DHS now thinks that foreign travel has become tantamount to a crime?