Mar 18 2024

Buses, trains, and US domestic travel without ID

In our previous article, we looked at the state of ID requirements and the the right to international travel for U.S. citizens.

What about domestic travel within the USA without ID?

Flying? Domestic US airline passengers are subject to demands for ID by airlines and the TSA. These demands are of dubious validity, and have arbitrary secret exceptions. Many people fly without ID every day. But not everyone is able or willing to challenge these authoritative-seeming demands for ID to fly.

Driving? States that choose to participate in the national REAL-ID system are making it harder and harder to get driver’s licenses or state IDs. It’s easier for a US citizen to get a passport or passport card than to get a driver’s license in some states. But you can’t legally drive in the US without a driver’s license issued by a state, US territory, or foreign government.

Unless you walk, ride a horse or bicycle, or get a ride in a car driven by someone else, that leaves buses and trains as the primary modes of long-distance travel for people in the U.S. without ID.

Can you take a long-distance bus or train in the US without ID? And if not, what could or should be done to guarantee that right? Read More

Mar 08 2024

US passports and freedom of international travel

As we mark twenty years since the creation of this website for the Identity Project, perhaps it’s time to assess the state of freedom of movement in the USA and for US citizens.

We’ve been reporting, in more detail than anyone else, on changes in policies and practices that affect our right to travel freely. But sometimes the big picture can get lost in the details. Incremental changes can be more significant, in the long term and in the aggregate, than might be apparent  if we focus on any single step along the way.

Travel is restricted by (1) requirements to have, carry, and show ID to cross international borders or travel by common carrier; (2) restrictions on issuance of passports, driver’s, licenses, and state IDs used or needed for travel; and (3) ID-linked blacklists and controls that allow travel only by government permission and restrict who is given permission to travel.

These mechanisms for control of movement operate differently for international travel than they do for movement within the USA.

Let’s look first at U.S. passports and international travel. (We’ll look at domestic travel within the U.S without ID, or without Federally-approved ID, in later articles.)

Can a US citizen travel internationally without a passport? Do they have a right to a passport — and if not, which US citizens can and can’t get a US passport? What is the legal basis for these restrictions, or what would be the legal basis for challenging them?

Read More

Jan 08 2024

Supreme Court hears arguments in “No-Fly” case

Gadeir Abbas speaking in front of the steps of the US Supreme Court

[CAIR Senior Litigation Attorney Gadeir Abbas speaks to press conference in front of the U.S. Supreme Court following oral argument in FBI v. Fikre.]

Today the US Supreme Court heard more than an hour of oral argument (transcript, MP3 audio) in the case of FBI v. Fikre, the latest in a series of cases in which the government has tried to avoid having a judge or jury review the criteria, procedures, and factual basis (if any) for no-fly decisions by removing previously blacklisted people from the no-fly list after they sue the government, and then asking courts to dismiss their lawsuits as “moot”.

In order to get such a complaint dismissed as “moot”, the government has the burden of showing that “subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur”, according to the District Court.

Inquiring minds on the Supreme Court wanted to know how the government could meet that burden — or whether it could ever do so — without disclosing the basis for the initial no-fly decision and/or what changes had been made to no-fly decision-making criteria or procedures.

Several Justices expressed “sympathy” with the government, but concern for due process:

Justice Gorsuch, for example, wanted to know why the government wouldn’t even tell a judge in a “Sensitive Compartmented Information Facility” (and maybe the plaintiff’s lawyer, if the government would give them a security clearance) anything about a no-fly decision:

Read More

Jan 03 2024

“No-Fly” case to be argued Jan. 8th in the Supreme Court

The U.S. Supreme Court will hear oral argument this Monday, January 8, 2024 on an appeal brought by the FBI challenging a Circuit Court decision in favor of Yonas Fikre. It’s the second case on the Supreme Court’s 10 a.m. EST calendar for oral argument Monday.

You can listen live online, attend a live watch party in DC if you can’t get into the Supreme Court, or listen to recorded audio that should be posted by the end of the day on Monday.

The complete Supreme Court docket and links to the pleadings in FBI v. Fikre are here.

The question presented to the Supreme Court in this case doesn’t directly address what substantive criteria or procedures are Constitutionally required for the government to order common carriers not to transport an otherwise-qualified U.S. citizen. A separate challenge to the entirety of the blacklisting system remains pending in U.S. District Court in Boston.

But this case in the Supreme Court does address one of the government’s standard tactics for evading judicial review of its blacklisting decisions: taking people who sue the government off blacklists to “moot” their cases if it looks like they might have a chance of getting a court to rule on the legality of the government’s procedures or criteria for blacklisting decisions or or the sufficiency of the evidence (if any) against them.

If anyone deserves to have the U.S. government’s decision to put him on its no-fly list reviewed by a judge, it’s Yonas Fikre.

Read More

Dec 26 2023

Congress watches the “watchlists” — but will Congress act?

Earlier this month  CBS News broadcast an in-depth report confirming that more than two million names (up from 1.75 million names in 2019) are now on U.S. government blacklists (euphemistically described as “watchlists”) restricting travel and other rights.

CBS also interviewed some of the U.S. citizens who, without ever being accused of any crime or having their day in court, and for no reason they know or that the government will tell them, have been stopped at gunpoint, delayed, or prevented from flying.

Less than a week later, the Senate Homeland Security and Government  Affairs Committee (HSGAC) released a detailed staff report on the same issue, “Mislabeled as a threat: How the terrorist watchlist & government screening practices impact Americans“.

The Chair of the HSGAC, Sen. Gary Peters (D-MI), also sent a formal request to the Inspectors General of each of the Federal departments that participate in the “Watchlisting Council”,   asking the Inspectors General to “coordinate on an assessment of the full implementation of the Terrorist Screening Dataset.”

“I have heard from my constituents, and in particular my Arab and Muslim American constituents, that they face undue levels of scrutiny and screening atairports, other ports of entry, and in their daily lives, which they believe is the result of their placement on the terrorist watchlist,” Sen. Peters  noted. “Inspectors General have not conducted a coordinated, independent assessment of the full watchlisting enterprise – from the nominations process; to how information is shared, used, and audited; to the redress options available to individuals who may match to the list.”

The same day, five other Senators and eight members of the House of Representatives sent a joint letter about “watchlisting” practices  to the heads of the Department of Justice, FBI, Department of Homeland Security, Transportation Security Administration, U.S. Customs and Border Protection, and several other agencies.

The joint letter asks for answers “no later than January 9, 2024” to a long list of questions about how many people are on U.S. government watchlists, how many have been added and removed, what procedures have been followed, what data has been collected or purchased about these people,  what if any redress is available to them, and what the criteria for adding names are supposed to be. “Beyond the spouses and children of individuals on the watchlist, what other categories of ‘non-terrorists’ may be included as exceptions to the reasonable suspicion standard for placement on the watchlist?”

We’re pleased that members of Congress are asking increasingly pointed questions about the U.S. government’s system of secret, arbitrary, extrajudicial blacklists.

But asking questions isn’t enough. What’s needed from Congress is legislative action.

We hope that members of Congress don’t stop at “making inquiries” or “demanding answers”.  There’s ample evidence already that the watchlisting/blacklisting system is out of control. It’s up to Congress to bring that system under control by enacting legislation restoring the rule of law to decision-making about who is allowed to exercise their rights.

If members on Congress want to do something about the problem of travel blacklists, not just talk about it, a good way to start would be to reintroduce and bring to a vote the Freedom to Travel Act, which was introduced in 2021 but never got a hearing or a vote.

Nov 13 2023

Advance Travel Authorization (ATA) and the “CBP One” app

 

As we’ve discussed before in this blog, and as other human rights advocates have noted, asylum requires traveling to a border. Since you can only apply for asylum after you arrive in a country of refuge, freedom to travel from a place where you are subject to persecution to a country of refuge is a prerequisite for asylum.

But as we have also noted, including in comments earlier this year to the U.N. Office of the High Commissioner for Human Rights concerning the rights of migrants, governments including the US government have steadily increased their efforts to undermine the right to asylum by preventing  asylum seekers from traveling to their borders.

The latest step in this direction is the Advance Travel Authorization (ATA) system operated by U.S. Customs and Border Protection (CBP). Under this program, asylum seekers can request permission through the CBP One mobile app to travel to the US. CBP is already operating this system under a temporary “emergency” authorization from the Office of Management and Budget (OMB), but is seeking OMB approval to make it permanent.

As we explain in comments we submitted today to CBP:

Because the US has no jurisdiction and CBP has no statutory authority over travel by non-US citizens within or between other countries or their departure from other countries, and because whether or not a non-US citizen has requested or been granted “permission” from CBP has no bearing on their right to leave any other country or to travel within or between other countries by common carrier or otherwise, this collection of information is of no practical utility for any lawful activity of CBP or any US agency.

Do asylum seekers need permission from the US government to leave other countries where they are being persecuted, or to travel to the US?

No, they do not, as we explain in our comments to CBP: Read More

Sep 26 2023

Broader challenge to Federal blacklists filed in Boston

In a nationally-significant lawsuit, the Council on American-Islamic Relations (CAIR) has filed the most comprehensive challenge  to date to the US government’s system of arbitrary and extrajudicial blacklists (“watchlists”) used to stigmatize and impose sanctions on innocent people — almost all of them Muslim — without notice, trial, conviction, or any opportunity, even after the fact, to see or contest the allegations or evidence (if any) against them.

The lawsuit, Khairullah et al. v. Garland et al., was filed last week in Federal District Court in Boston on behalf of twelve Muslims from Massachusetts and other states who have been stopped, prevented from traveling to, from, or within the US by air, harassed, delayed, interrogated, threatened, strip-searched, had all the data on their electronic devices copied, detained at gunpoint, denied permits, and had banking and money-transfer accounts summarily and irrevocably closed, among other adverse consequences:

Plaintiffs, along with over one million other people, have been placed by Defendants on the federal terrorist watchlist. Defendants claim the power to place an unlimited number of people on that list and, as a result, subject them to extensive security screening, impose adverse immigration consequences on them, and distribute their information to thousands of law-enforcement and private entities, which then use it to affect everyday interactions like traffic stops, municipal permit processes, firearm purchases, and licensing applications.

Congress has never statutorily authorized the creation, maintenance, use, or dissemination of the Terrorist Screening Dataset, its subsets like the Selectee List and No Fly List, the Quiet Skies and Silent Partner systems, or any other rules-based terrorist targeting lists.

WHEREFORE, Plaintiffs requests this Honorable Court grant declaratory and injunctive relief….

The complaint includes a depressingly thorough, detailed, and diverse litany of incidents of interference with normal life, especially with normal travel.

One US citizen plaintiff now abroad has been effectively exiled because the US government won’t allow any airline to transport him back to the US from overseas.

The effects of blacklisting can last for life. Because the US government continues to stigmatize “formerly” blacklisted individuals and flag them to its own agents and third parties including foreign governments, some of the plaintiffs continue to suffer these consequences despite having purportedly been “removed” from US “watchlists”.

Because the US government’s blacklisting algorithms incorporate explicit guilt-by-association criteria, some plaintiffs have had their friends, family members, and colleagues targeted for adverse treatment solely on the basis of having “associated” (an act protected by the First Amendment to the Constitution) with a blacklisted person.

As the complaint explains:

[B]ecause Defendants consider being a relative, friend, colleague, or fellow community member of a TSDS [Terrorist Screening Dataset] Listee “derogatory information” supporting placement on the watchlist, Muslim communities are subjected to rapidly-unfolding network effects once one member is watchlisted. One nomination, even if grounded in probable cause or a preexisting criminal conviction, can quickly spiral into Defendants classifying nearly every member of an extended family or community mosque as a suspected terrorist.

A similar lawsuit, also brought by CAIR, led a Federal District Court judge in Virginia to rule in 2019 that the Federal blacklisting system was unconstitutional. But that ruling was overturned in 2021 in a strikingly poorly-reasoned opinion by the 4th Circuit Court of Appeals.

The new lawsuit has been brought in a different circuit (the 1st Circuit), and the new complaint includes more recent information — including the disclosure of the no-fly and “selectee” lists — and arguments to bolster the case and counter the claims made by the 4th Circuit judges.

Lawsuits like this take years to be resolved, but we’ll be watching this one closely.

Jun 26 2023

9th Circuit rejects TSA claim of impunity for checkpoint staff who rape travelers

Last December, we attended and reported on oral argument before the 9th Circuit Court of Appeals in a case in which the Transportation Security Administration (TSA) argued that TSA checkpoint staff have absolute immunity from lawsuits for assault, even sexual assault or rape, committed against travelers they are “screening”.

We’re pleased to report that today the 9th Circuit panel of judges rejected the TSA’s claim of impunity. The three judges found unanimously that the Federal Tort Clams Act (FTCA) allows lawsuits against the TSA for damages caused by checkpoint staff who assault travelers. The 9th Circuit thus joins every other Circuit Court of Appeals (the 3rd, 4th, and 8th) to have addressed this issue in a published opinion.

The case decided today by the 9th Circuit will now return to the U.S. District Court in Las Vegas for much-belated consideration of the claim against the TSA and its officers. The precedent set by today’s decision will apply throughout the 9th Circuit, the largest of the Federal judicial circuits, including all of the states on the West Coast.

Kudos to Jonathan Corbett, Esq., who has represented the plaintiffs in each of these cases.  Coals for Christmas to the TSA for continuing to argue for impunity for its staff to one Circuit Court after another, despite the growing weight of precedent against the agency and, perhaps more importantly, the moral repugnance of arguing that any agents of the government should be entitled to assault or rape members of the public with impunity.

Jun 13 2023

98% of names on U.S. travel blacklist are Muslim

98% of the names on the U.S. government’s travel blacklists, including all of the top 50 names that appear most frequently on those lists, appear to be Muslim, according to a statistical analysis commissioned by the Council on American Islamic Relations (CAIR).

This analysis of the so-called “watchlist” (a euphemism for “blacklist”) is included in a report released this week in conjunction with the annual Muslim Advocacy Day on Capitol Hill organized by the US Council of Muslim Organizations (USCMO).

When the U.S. government’s “No-Fly list” and “Selectee list” were made public earlier this year, we were the first to point out that more than 10% of the entries on the No-Fly list (174,202 of 1,566,062) contain “MUHAMMAD” in either the first or last name fields, in addition to those entries with other spellings of Muhammad.

CAIR’s latest report goes into more detail:

CAIR has studied more than 1.5 million entries on a 2019 version of the FBI’s list, provided to us by a Swiss hacker who found them online after a regional air carrier accidentally posted them to the public internet. One scroll through it reveals a list almost completely comprised of Muslim names. In fact, more than 350,000 entries alone include some transliteration of Mohamed or Ali or Mahmoud and the top 50 most frequently occurring names are all Muslim names….

CAIR shared the leaked list with statistical experts for review to determine what percentage of the list is Muslim. The expert analysis of the people on the list—approximately 1.5 million entries—indicates that more than 98% of all records in the watchlist identify Muslims.

In its report and at the press conference announcing its findings, CAIR called out the lack of any legislative basis for secret blacklists, the difficulty of challenging secret decisions in court, and the failure of Congress to exercise its oversight responsibilities:

Congress did not give the FBI this authority. There is no law that made the watchlist…. But neither the FBI nor any other government agency should have a secret list. They’ve abused the one that they have now, and there is no such thing as a good, lawful kind of secret government list made available to hundreds of thousands of government actors. It is time to bring this practice to a close.

CAIR and other advocates for the civil rights of Muslim Americans are making this issue a priority in their meetings with members of Congress this week. We hope that their efforts will help prompt members of Congress to reintroduce and enact the Freedom To Travel Act or include it in other omnibus legislation.

May 12 2023

IDP input to UN report on human rights of migrants

At the invitation  of the U.N. Office of the High Commissioner for Human Rights (OHCHR), the Identity Project has submitted our input for a forthcoming report by the U.N. Secretary-General to the General Assembly on “The Human Rights of Migrants”.

Our previous submissions on this issue (2014, 2015) have been cited favorably in reports and recommendations of the OHCHR. But as we note in our latest submission to the OHCHR, the rights of migrants, especially asylum seekers, continue to be violated:

The pattern of violations of the rights of migrants, particularly asylum seekers, by states and common carriers (the latter often both encouraged and given de facto impunity by states) discussed in our our previous submissions to the OHCHR has continued and has become more pervasive and globally normalized.

As we discussed in our previous submissions to the OHCHR, the right to leave any country is routinely and systematically violated through (1) requirements for identity credentials or other documents or information as a condition of travel by common carrier, without respect for the right to leave any country and to return to the country of one’s citizenship regardless of what, if any, credentials or documents one possesses, (2) requirements for “pre-screening” and approval by destination states of common carrier passengers, prior to departure from origin states, that amount to de facto foreign-imposed exit visa requirements, (3) sanctions imposed by states on common carriers to induce carriers not to transport certain passengers on vessels departing from origin states, on the basis of necessarily unreliable predictions of admissibility to, or asylum in, destination states, and (4) failure by states to enforce the duties of common carriers (pursuant to common carrier laws and aviation treaties) to transport all would-be passengers, including asylum seekers, regardless of their legal status or possession of documents.

All of these actions involve the assertion of extraterritorial authority by a State X over individuals seeking to depart from the territory of a State Y, on the basis of potential inadmissibility of those individuals to State X, if and when they were to arrive in State X.

These are all, essentially, attempts to conflate exit, entry, and movement, and to convert the requirements established by State X for entry to State X into extraterritorial requirements for exit from State Y and for travel between State Y and State X, including travel by common carrier through international airspace or international waters.

There are (at least) three reasons why any such assertion of extraterritorial authority is fundamentally contrary to international law, including human rights law:

First, the right of State X to control entry to its territory does not imply any right to control exit from State Y or movement between State Y and State X. With respect to international air travel, Article 13 of the Chicago Convention on Civil Aviation provides that entry requirements of a state party apply only “upon entrance into or departure from, or while within the territory of that State”. Extraterritorial authority by a destination state over departure from other states or movement through international airspace or waters would be fundamentally contrary to the freedom of navigation by air and sea.

Second, the right to leave any country, as recognized by Article 12, Paragraph 2 of the International Covenant on Civil and Political Rights, is not contingent on admissibility to any other country. If a claim for asylum is denied, an asylum seeker may be deported, subject to the prohibition on refoulement. But the possibility that they might be denied admission or have their claim for asylum rejected on arrival is not a lawful basis for denial of their right to leave any other country, including by common carrier.

Third, because eligibility for asylum can only be determined after an asylum seeker arrives in a destination country, it is per se impossible for anyone – even government authorities, much less common carrier staff – to determine prior to departure from a country of origin whether an asylum seeker will be found eligible for asylum if and when they reach a particular destination country and apply for asylum. Any attempt to determine eligibility for asylum prior to departure from a country where an individual is in fear of persecution is necessarily premature and unreliable, and must be rejected as categorically impermissible and a violation of the right to seek asylum on arrival.

The right to leave any country and the right to travel by common carrier must be recognized as essential to the human rights of asylum seekers, including their right to life.

Today there is no practical, affordable, or safe alternative to air travel as a way to leave many countries. Denial of access to travel by common carrier amounts to denial of the right to leave the country and of the possibility to seek asylum anywhere else.

Restrictions on the right to leave any country, including restrictions on departure by common carrier, can endanger the lives of persecuted individuals by trapping them in situations of persecution or by forcing them to resort to irregular and dangerous means of transport as the only way to flee a country where they are suffering persecution.

Restrictions on travel by common carrier force asylum seekers – desperate to escape persecution – to risk their lives to travel by irregular means. Many of them die.

Many eligible asylum seekers could afford to purchase airline tickets or tickets on other common carriers (ferries, trains, buses, etc.) to travel to countries where, on arrival, they would be eligible for asylum. They risk their lives as “boat people” or walking across mountains and deserts, and some of them die, solely because airlines or other common carriers improperly refuse to sell them tickets or deny them boarding.

Many, perhaps most, deaths of asylum seekers in transit are directly attributable to “carrier sanctions” that incentivize common carriers to deny passage to asylum seekers.

Carrier sanctions kill, and they must be strongly and unequivocally condemned.

[Full submission of the Identity Project to the OHCHR, May 12, 2023]

We look forward to the forthcoming report and to the discussion in the General Assembly.