Papers, Please! – Page 62 – The Identity Project

Dec 01 2011

DHS responds to our complaints of human rights treaty violations

More than five years after we filed our first formal complaint with the Department of Homeland Security that its travel surveillance and control programs violate U.S. international human rights obligations under freedom of movement) of the International Covenant on Civil and Political Rights, we’ve finally received a response from the DHS Officer for Civil Rights and Civil Liberties. [Update: Our follow-up letter to DHS OCRCL requesting review of our complaints by the Interagency Working Group on Human Rights Treaties.]

The response dismisses all of our complaints, and indicates a disturbing failure to understand the fundamentals of international human rights law. For example, it repeatedly states that the policies we complained about were “authorized” by federal law, when under the Constitution no statute can authorize actions contrary to U.S. obligations under international treaties.

Nonetheless, this is the first time, so far as we can tell, that any Federal agency has formally acknowledged a complaint from the public as being a complaint of violation of U.S. human rights treaty obligations by that agency, or has provided any formal response to such a complaint.

While such complaints are unlikely to have much direct effect, the process created in response to our complaint and our follow-up FOIA and Privacy Act requests provides, for the first time, a mechanism for documenting the fact that such complaints have been made.

Executive Order 13107 requires each cabinet-level federal department to designate a single point of contact for complaints of human rights violations, and to respond to such complaints.

Having gotten the DHS to implement these provisions of Executive Order 13107, we’re still trying to get the issues we’ve raised considered by the Interagency Working Group on Human Rights Treaties.

We’re also continuing to pursue our human rights complaint and follow-up FOIA request to the Department of State. When last we heard from the Department of State, they estimated that they would have a response to our FOIA request in April 2012.

If you want to make such a complaint yourself about the DHS or any DHS component, send it to:

Ms. Margo Schlanger
Officer for Civil Rights and Civil Liberties
Building 410, Mail Stop #0190
U.S. Department of Homeland Security
Washington, D.C. 20528
CRCL@dhs.gov

If you can’t figure out who has been designated as the “single point of contact” for some other department, send it to the respective cabinet secretary. The magic words to use are:

This is a complaint of a violation of U.S. obligations under international human rights treaties, specifically [specify clause and treaty]. We request that you refer this complaint to the officer you have designated as the single contact officer for your department responsible for overall coordination of the implementation of Executive Order 13107 on implementation of human rights treaties, and that we be provided with a response to this complaint. We also request that the subject matter of this complaint be reported to the Interagency Working Group on Human Rights Treaties, and included in the annual review by the Interagency Working Group of matters as to which there have been non-trivial complaints or allegations of inconsistency with or breach of international human rights obligations.

If you don’t receive any answer, make a FOIA request like this one for what has happened to your complaint and who (if anyone) has been designated as responsible for such complaints to that department.

If you try this , please let us know how it goes, and what (if any) response you receive.

We’ve reported on this process in a series of articles in this blog over the years. For those who are interested, here’s a chronological set of links to our correspondence with the DHS and Dept. of State:

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Nov 28 2011

Revised EU-US agreement on PNR data still protects only travel companies, not travelers

On November 17, 2011, US and European Union officials initialed a renegotiated proposed agreement (original English version; official German translation; official French translation) to authorize airlines to forward PNR data (travel reservations) to the U.S. Department of Homeland Security (DHS). As an executive agreement, not a treaty, it doesn’t require any further US approval, but it does require ratification by both by Council of the EU (national governments of EU members) and the European Parliament.

The US is mounting an exceptionally intense high-level lobbying and public propaganda campaign on this issue in Brussels. But despite the importance of the issue, members of the European Parliament (MEPs) have only been allowed to read the proposed agreement in a sealed room, and have been forbidden to take written notes or speak publicly about what the revised proposal says.

To facilitate informed public debate, we are publishing the full text of the proposed agreement in English, German, and French. This is the final version as initialed, on which the Council and Parliament will be voting, possibly as soon as the end of this year.

The latest version of the EU-US agreement on PNR transfers to the DHS fixes none of the fundamental problems we and the European Parliament have identified in previous drafts, as discussed in our previous articles, our FAQ about the previous version of the proposal, and our recent presentations to MEPs:

Events in Europe on US travel surveillance and control

We’ll be participating in a series of public events and private meetings next week with European activists and with European Union and European national officials on PNR data (airline reservations), privacy, data protection, and human rights. Our presentations at all of these events will be in English, although much of the publicity is (naturally, given the venues) in German. see the links below for slides, handouts, video, and news reports on our presentations:

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Oct 06 2011

How the USA imposes travel bans within Europe

In an article here yesterday, we mentioned a report earlier this month by Andrej Hunko, a member of the German national legislature (“Bundestag”) , based on responses to his information access requests to the German government about its collaboration with DHS and use of PNR data. There was more about this in DHS testimony at yesterday’s hearing in the U.S. House of Representatives. The following is an English translation of Andrej Hunko’s report, republished by permission of the author:

How the US Department of Homeland Security imposes travel bans within the EU

by Andrej Hunko, September 28, 2011

Naturally enough, the website of the NoPNR campaign regularly contains material about the retroactive legalisation of exchanges of passenger name record (PNR) data between EU Member States and the United States, Canada or Australia. Members of Parliament in the EU from several parties have already done some important work on this issue and have been levelling fierce criticism at the planned agreements, which, in point of fact, have long been applied on a ‘provisional’ basis.

I believe, however, that it is all too easy to lose sight of the fact that the US Department of Homeland Security (DHS) employs hundreds of staff who operate at airports and sea ports within the EU. This practice came to light in the summer after Mark Koumans, Deputy Assistant Secretary for International Affairs, presented a report on security issues in Europe and Eurasia before the House of Representatives Subcommittee on Europe and Eurasia.

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Oct 05 2011

DHS pitches PNR-based travel surveillance and control at House hearing

A troika of officials from the DHS appeared today before the Subcommittee on Counterterrorism and Intelligence of the House Committee on Homeland security to make a joint sales pitch for the proposed agreement between the US and the European Union on DHS access to PNR data (airline reservations).

Today’s hearing appears to have been staged purely as a propaganda exercise intended to mislead European Union officials and citizens about the PNR agreement and DHS use of PNR data. The proposed “agreement” would not be a treaty (and thus would be unenforcible in U.S. courts). Even if it were reformulated as a treaty — as the European Parliament has demanded as a condition for its ratification of the agreement — it would only require ratification by the U.S. Senate, not the House of Representatives.

The House subcommittee hearing certainly looked as though it was held to create a stage for the DHS. The three DHS officials were the only witnesses. They included Chief “Privacy” Officer Mary Ellen Callahan, who Edward Hasbrouck of the Identity Project debated in June at CFP, and David Heyman (successor to Stewart Baker, who wrote the original US-EU PNR agreement as DHS Asst. Secretary for Policy), who had been scheduled to participate in the CFP panel but canceled at the last minute.

In the absence of any independent or non-governmental witnesses who might have raised questions or presented alternative views, the DHS witnesses at today’s hearing presented a “united front” including an unusual joint written statement.

For the most part, the DHS repeated the same lies today as have appeared in previous DHS reports and lobbying to the EU. For example, they described PNR data incorrectly as “the data an airline receives from a traveler,” ignoring the data entered in PNRs (unbeknownst to travelers) by travel companies and other third parties. They said that “Of the literally billions of passengers traveling to and from the United States during the past 10 years, there has not been a single … use of PNR in violation of established privacy protections,” despite the DHS track record of using PNR data as the basis for denying innocent people — including both US and EU citizens — their right to travel.

In their most egregious lie, perjuring themselves before Congress, the DHS witnesses claimed again (falsely) today, as they have claimed (falsely) before, that:

DHS applies fair information practice principles to its collection and use of PNR, including … auditing and accountability, individual access, and redress. Moreover, the Department is firmly committed to transparency when it comes to informing our partners and the public about its mission, including how we use … identifiable information such as PNR data.

This statement is false. The DHS witnesses who made this statement knew it was false. And they made it for the sole purpose of misleading Europeans about the facts.

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Oct 01 2011

A real story about REAL-ID

From the Identity Project mailbag:

My life has been basically destroyed because I don’t have a valid state-issued photo ID.

Thanks to terrorists, it is illegal for any employer in my state to hire me.

I am a natural-born citizen of the United States, born and raised in the State of New Jersey. I have lived here most of my life. I have never been convicted of a felony nor even a misdemeanor. I have never been arrested, nor even ever received so much as a parking ticket. I do not receive any funds from Welfare, Social Security, or any other government program. I am not a terrorist.

Yet, in the State of New Jersey, it is illegal for any employer to hire me, and has been for about the last 6 years.

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Sep 30 2011

How would REAL-ID affect the right to travel?

In the latest step in the implementation of the REAL-ID Act and the establishment of a de facto national ID card and database, the Department of Homeland Security has requested OMB approval for the collection of additional information from states and individuals.

The public response to the DHS request, particularly these comments submitted by the Electronic Privacy Information Center (EPIC), highlight the important unanswered questions about how REAL-ID Act implementation will affect the right to travel:

EPIC’s comments focus on the widely-publicized recent case of Lewis Brown, a former high school and college basketball star who died on a street in Southern California homeless, earlier this month:

EPIC writes today to draw the agency’s attention to the death of Lewis Brown, a former college basketball prodigy, who died on the streets of Los Angeles because he could not scrape together the money to obtain a state-issued identity document…. According to the New York Times, Brown, a basketball legend at the University of Nevada at Las Vegas, planned to fly to visit his family in New York and could not. Homeless and destitute, living on the sidewalks of Hollywood, Brown had developed cancer and planned to go to the hospital. Brown’s mother learned about his condition and stated that she wanted to see him “before he died.” Brown’s sister, Anita, told him to visit New York. Brown told confidants that he lacked funds to qualify for a California identification card, and was taking donations and borrowing money.

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Sep 27 2011

More US lies to the European Parliament

In an appearance on September 20th before the LIBE (civil liberties) Committee of the European Parliament to lobby for legalization of US government access to European airline reservations (PNR data), US Attorney General Eric Holder claimed that there has been “not one single example of privacy being breached” by the US in its processing of PNR data. We “need to deal with what is real, not what is hypothetical”.

Is Holder’s claim true? What’s “real”, and what’s “hypothetical”?

In reality, DHS policies prevent us from knowing how many breaches of privacy or other fundamental rights have resulted from US processing, use, and/or disclosure to others of PNR data. Read More →

Sep 25 2011

What do we want? “Abolish the TSA!”

The first time the White House conducted a public online poll allowing We, the People to petition the President for redress for our grievances, the petition that got the most signatures called on the Obama Administration to lergalize and regulate marijuana in a manner similar to alcohol. After an elaborate built-up to the petition poll, President Obama dismissed the result as a joke.

Now the White House is at it again, and the leading grievance of the people against the government is even more overwhelmingly clear. Let’s see if the President once again laughs off our petition.

Here’s the most popular petition to the President, with more than 20,000 signatures in the first 3 days since it was posted:

We petition the Obama administration to:

Abolish the TSA, and use its monstrous budget to fund more sophisticated, less intrusive counter-terrorism intelligence.

The Transportation Security Administration has been one of the largest, most expensive and most visible blunders of the post-9-11 homeland security reformation. It has violated countless constitutional rights of average Americans, caused miserable and expensive delays in an already-overburdened air travel system, and allowed multiple known instances of harassment, theft, extortion and sexual abuse by its employees. It has failed approximately 70% of undercover efficacy tests, and for all its excesses, has been unable to catch even a single terrorist since its creation. In our current economic situation, we can no longer afford to continue wasting taxpayer dollars on this kafkaesque embarrassment. Let us instead invest in saner, more effective solutions.

You can add your signature through October 11, 2011.

Sep 16 2011

Court hearing in our lawsuit for DHS travel records

A little more than a year after we filed suit on behalf of Edward Hasbrouck against the Customs and Border Protection (CBP) division of DHS to find out what records they are keeping about our international travels, and what they have done with those records, we had our first real day in court yesterday in front of Federal Judge Richard Seeborg in San Francisco.

Judge Seeborg was appointed as a judge of the U.S. District Court by President Obama, after a decade as a Federal magistrate and seven years before that as a Federal prosecutor. On first impression, he seems fair-minded and thoughtful, although — like most judges — inclined to give more “deference” than is warranted to even implausible claims by police and prosecutors, such as some of those made in the declarations submitted by the CBP in opposition to Mr. Hasbrouck’s complaint.

Mr. Hasbrouck was represented by David Greene of Holme Roberts & Owen (formerly executive director and staff counsel of the First Amendment Project), who conducted yesterday’s argument, along with FAP staff attorney Lowell Chow. Former FAP staff attorney Geoffrey King also worked on earlier stages of the case, as did several FAP law school student interns, who we were pleased were able to attend the argument. We are grateful to them all for their contributions.

CBP was represented by Assistant U.S. Attorney Neill Tseng, who conducted the argument, accompanied by an attorney from the CBP.

As we expected, and as is usual, no decision by the court was announced at yesterday’s hearing. In each of the other cases on Judge Seeborg’s motion calendar yesterday, he began by describing how he was “inclined” to rule on the matters before him. In our case, however, Judge Seeborg began — after some comments about how ill-suited the typical summary judgment motion practice is to FOIA or Privacy Act cases like this, where the issues only gradually become clear in the course of the briefing — by saying that after reading the lengthy pleadings he had only the most tentative “impression” as to how he might rule on any of the issues.

In other words, he still had an open mind, and oral argument might actually matter.

With that preface, Judge Seeborg invited Mr. Hasbrouck’s attorney, David Greene, to address whatever issues he thought were most important, and then gave AUSA Neill Tseng an opportunity to respond for the CBP.

If you’re just tuning in, the best places to start are the Identity Project FAQ (for the political issues and significance of the case) and our last reply brief before yesterday’s argument (for the legal issues).

Broadly speaking, the argument focused on what we would group into four main questions:

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