Archive for the ‘Secret Law’ Category

“Naked American Hero” goes to court

Monday, March 16th, 2015

John Brennan, the “Naked American Hero” who took off all his clothes at a TSA checkpoint at the Portland, Oregon airport, will finally have his day in a Federal court more than three years later.

Mr. Brennan was (falsely) arrested by Portland city police, acting at the behest of the TSA checkpoint staff, on April 17, 2012.  He was acquitted of criminal charges by a local judge, since nudity as a form of political expression has been held to be protected by Oregon’s state constitution.

But the TSA assessed a $500 administrative fine against Mr. Brennan for “interfering with screening”, notwithstanding both the Oregon court’s finding that his action was form of protected political expression and the fact that he never interfered with anyone at the TSA checkpoint. It was the TSA staff who chose not to search Mr. Brennan’s clothes after he took them off, not to complete his “screening” once they could see that he wasn’t carrying any weapons or explosives, and to shut down the entire checkpoint.

The TSA’s administrative decision to fine Mr. Brennane followed a kangaroo-court administrative hearing (held in a courtroom rented for the day from the US Bankruptcy Court), a decision by a so-called Administrative Law Judge (not actually a judge, but a DHS staff person rented from the US Coast Guard), and an administrative appeal to a TSA decision-maker designated by the head of the agency.

Throughout these administrative proceedings, the TSA and other DHS staff were forbidden to consider the Constitutionality or validity of the TSA’s regulations or actions.  Only after jumping through three years of these hoops is Mr. Brennan entitled to have a real judge of a real court assess whether the TSA acted lawfully or had any authority to impose a fine for actions such as Mr. Brennan’s.

In an effort to frustrate even this belated judicial review, Congress requires that it be conducted by a Federal Circuit Court of Appeals, based on “deference” to the TSA and the TSA-supplied “administrative record” rather than an actual trial or any fact-finding by the Court of Appeals. (Our Freedom of Information Act request for the administrative record of the TSA’s proceedings with respect to Mr. Brennan is still pending and unanswered after almost two years.) But the Court of Appeals can now finally, at this stage, consider Constitutional and other objections to the legality of the TSA’s actions.

On November 14, 2014, Mr. Brennan filed a petition with the 9th Circuit Court of Appeals for that court to review the TSA’s order assessing a $500 fine against Mr. Brennan. The case in the 9th Circuit is John Brennan v. US DHS and TSA, docket number 14-73502.  Mr. Brennan is represented in the 9th Circuit by Michael Rose of Portland, the same attorney who successfully defended Mr. Brennan against the state and local criminal charges.

On March 2, 2015, Mr. Brennan’s attorney filed his brief asking the Court of Appeals to void the TSA fine, making the arguments he wasn’t allowed to make in the TSA administrative proceedings regarding the unconstitutional vagueness and other defects in the TSA’s regulations and actions.  Mr. Brennan’s brief was accompanied by excerpts from the TSA administrative record, although most of that record continues to be improperly withheld from disclosure by the TSA despite our FOIA request.

Following a written response from the DHS and TSA (the government has already asked for, and been granted, an extension of time), and a written reply from Mr. Brennan, the 9th Circuit will decide whether to schedule oral argument or make a decision solely on the basis of the written arguments.

Mr. Brennan is continuing to pay for his own legal representation. There’s more information here about how you can contribute to his legal defense and help spread the word about his case.

2nd person told they’ve been taken off the US “No Fly” list

Wednesday, February 25th, 2015

For only the second time, a would-be traveler has been given offical notice by the US government that they are not on the US “No Fly” list.

Just weeks before a scheduled March hearing in a Federal lawsuit brought by US citizen Jamal Tarhuni challenging his repeatedly having been prevented from boarding commercial airline flights, including flights back to his home in Oregon from overseas, the director of the DHS “Traveler Redress Inquiry Program” (DHS-TRIP) has sent Mr. Tarhuni the letter above, telling him that, “We have been advised that you have been removed from the No Fly List.”

The only previous time the US government has told anyone they weren’t on the no-fly list was last year, in response to a direct order from a Federal court in the case of Dr. Rahinah Ibrahim. Unlike Mr. Tarhuni, Dr. Ibrahim is not a US citizen, although one of her children was born in the US and is a US citizen. Dr. Irahim’s US visa has been revoked, so she can’t return to the US regardless of whether she is on the US no-fly list. The Supreme Court heard arguments earlier this week on whether State Department decisions to deny visas to family members of US citizens are subject to judicial review.

The DHS-TRIP letter to Mr. Tarhuni makes no promises about future actions, and doesn’t guarantee that he will be allowed to travel by air. He still doesn’t know why he was on the no-fly list in the first place. He could be put back on the no-fly list at any time (including, as happened to him before, while he is abroad), without notice or explanation. And even if he isn’t put back on the no-fly list, he could be refused permission to board any flight (again potentially including flights home to the US from abroad) based on real-time pre-crime profiling and risk scoring.

Presumably, the government will now seek to have Mt. Tarhuni’s complaint dismissed as “moot”.

The government is also likely to use its latest letter to Mr. Tarhuni as evidence in other pending no-fly cases, including those of Yonas Fikre (who is represented in his ongoing lawsuit by the same attorney as Mr. Tarhuni) and Gulet Mohamed.  So far as we know, Mr. Fikre is the only person who has been given official notice that he is on the US no-fly list, and not just constructive notice in the form of a denial of transportation by an airline. Mr. Fikre was denied asylum in Sweden, and, since he is still on the US no-fly list, was able to return to the US only because the Swedish government chartered a private jet to deport him.

The system of secret, extrajudicial no-fly orders is working, the government will claim, so the courts don’t need to  exercise oversight over the process. The government will argue that if DHS-TRIP and the government’s recently-revised “No Fly 2.0″ procedures provide sufficient administrative due process, the courts don’t need to review the allegedly derogatory evidence (if any) supporting DHS and FBI no-fly decisions.

Must we choose between the right to travel and the right to remain silent?

Tuesday, February 24th, 2015

When US citizen Jonathan Corbett checked in at Heathrow Airport in London for an American Airlines flight to New York last December, he was questioned by an airline employee or contractor (it’s often impossible to tell which are which) about his travel outside the US:

When questions changed from, “Where are you flying?” to “Was your trip for personal or business purposes,” and “Where were you since you left America,” I asked if the questions were necessary, and was told yes.

Mr. Corbett was eventually allowed to board his flight without answering these questions. But he followed up first with the airline, which referred him to the TSA, and then with the TSA itself.

Both AA and the TSA said that the questioning is part of a TSA-mandated “security program”. While AA and the TSA both claimed that most details of this program are secret, the TSA “Office of Global Strategies Communications Desk” (OGSCommunications@tsa.dhs.gov) told Mr. Corbett that answering the questions is a condition of boarding a flight to the US:

As part of its Transportation Security Administration (TSA)-approved security program, American Airlines is required to conduct a security interview of passengers prior to departure to the United States… If a passenger declines the security inteview, American Airlines will deny the passenger boarding. The contents of the security program and the security interview are considered Sensitive Security Information (SSI) … and its contents are not for public disclosure. Any security procedure performed by the airline would be because of a requirement in their program.

Yesterday, Mr. Corbett filed suit against the TSA in both the U.S. District Court for the Eastern District of New York (which has jurisdiction over Kennedy Airport in Queens, where his flight arrived in the US) and in the 11th Circuit Court of Appeals (which has jurisdiction over Florida, where Mr. Corbett resides).  Perverse judicial precedents including those in Mr. Corbett’s own previous lawsuits require most lawsuits against TSA practices to be filed simultaneously in both District and Circuit Courts, to avoid a risk of being dismissed on jurisdictional grounds.

Mr. Corbett’s lawsuit directly challenges the requirement for a traveler to answer questions (i.e. to waive his or her Firth Amendment right to remain silent) as a condition of the exercise of the rifght to travel, specifically the right of a US citizen to return to the US.

(more…)

REAL-ID Act implementation, enforcement, and resistance

Monday, February 23rd, 2015

Is gradual implementation of the REAL-ID Act cooking us slowly, like frogs who, if the temperature of the water is increased gradually enough, don’t realize that they need to jump out of the pot until it’s too late?

Last month was another of the deadlines set by the Department of Homeland Security for “implementation” and “enforcement” of the REAL-ID Act.  That also makes it time for stepped-up resistance to REAL-ID.

Understanding the meaning of this deadline, and the remaining deadlines to come, requires some background. Below is an overview of what the REAL-ID Act is, how and by whom it will be implemented and enforced, what it means to “comply” with the REAL-ID Act, what we can expect to happen next, and — perphaps most importantly — what we can do, now, to resist it.

The REAL-ID Act of 2005 is a Federal law intended to mandate the creation of a distributed but integrated national database of personal identity records (including birth certificates or alternative “breeder documents” [sic]) linked to state-issued identity credentials. The REAL-ID Act also includes Federal standards for the physical ID cards, including drivers’ licenses or alternative non-driver ID cards, issued by US states and territories. But the real focus is on the database: what data will be included and how it will be normalized and made accessible through a single user query interface.

The Federal government can, and often does, bribe states with Federal funding to do things the way the Feds want. But the REAL-ID Act didn’t include funding for state-level implementation, and was based (like many other DHS programs, such as its multi-billion dollar mandates for modifications to airline IT systems to support surveillance and control of air travelers) on gross underestimates of its cost. In any event, some states strongly opposed the whole idea of a national ID scheme, and would probably have declined to participate even if the Feds had been willing to foot the bill.

The states already manage the issuance of drivers’ licenses and non-driver ID cards, which are most US citizens’ primary government-issued identity credentials.  Setting up a Federally-administered ID credential system would have been vastly more expensive and politically controversial than leaving it to the states.

So the problem for the architects of “REAL-ID” was how to induce all the states and territories to “comply” with goals and standards that would neither be officially binding on the states, nor financed by the Feds.

The workaround for indirect coercion of state governments was to threaten Federal sanctions against individual residents of states that don’t comply with the REAL-ID Act. The sponsors of REAL-ID hoped that these threats would scare voters into lobbying their state legislators’ to bring their states into line with the Feds’ desires.

The REAL-ID Act doesn’t officially “require” states or individuals to do anything.  Its “enforcement” mechanism is a prohibition on acceptance for “Federal purposes” of drivers’ licenses or other ID credentials issued by states or territories that don’t comply with the requirements in the Federal law and the implementing regulations issued by the DHS.

There was still a problem for the DHS and the other backers of REAL-ID, however: How to make the threat of sanctions against residents of “noncompliant” states sufficiently harsh and sufficiently credible to get them to pressure their state governments to comply, without catalyzing a mass movement of grassroots resistance by outraged victims (or potential victims, or their supporters) of those sanctions.

The strategy adopted by the DHS has been to phase in the sanctions very gradually, over a period of many years, starting with those which would have the least significant consequences.  The problem for the DHS is that those threats which are most intimidating are those which would be most likely to provoke blowback against the Feds, and lead to more pressure on Congress to repeal the REAL-ID Act. The result has been a decade-long game of chicken between the DHS and reluctant or resistant state governments.

The DHS won’t (and politically can’t) admit the possibility that states won’t kowtow to its demands. State legislators can’t believe that the DHS would really be able to get away with denying access to Federally-controlled facilities and programs (more on that below) to all residents of noncompliant states, as well as residents of compliant states who are unable and/or unwilling to satisfy the documentary prerequisites for issuance of a REAL-ID compliant ID card.

When states haven’t complied — because they didn’t want to, or because they couldnt’t afford to, or because it was taking longer than expected to develop the infrastructure for the distributed database  — the DHS postponed the deadlines.

It’s been a decade since the REAL-ID act of 2005 was enacted, and most residents of “noncompliant” states have yet to be subjected to any Federal consequences for not having a REAL-ID card.  The criterion for “compliance” is political obeisance and stated or inferred intent, not action. All states that said they intended eventually to comply were deemed to be “compliant”, and given extensions of time to get with the program in practice. Even some states which enacted state laws prohibiting state agencies from implementing REAL-ID procedures have been “certified” by the DHS to be in “constructive compliance” with the required intent to comply.

Is this DHS certiification wishful thinking? What will these states do as the deadlines approach? That remains to be seen, and depends primarily on what individual residents of those states do.

(more…)

Hearing March 17th in Denver on “Freedom Flyer” Phil Mocek’s appeal

Wednesday, February 4th, 2015

Oral arguments on “Freedom Flyer” Phil Mocek’s appeal of the dismissal of his Federal civil rights lawsuit against the TSA employees and Albuquerque police responsible for falsely arresting him at a TSA checkpoint at the Albuquerque airport in 2009 have been scheduled for Tuesday, March 17th, in Denver, Colorado.

The 10th Circuit Court of Appeals hearing will be (sort of) open to the public, with caveats as discussed below.

Mr. Mocek was arrested — valid boarding pass in hand — in retaliation for trying to exercise his First Amendment rights to (a) travel by licensed interstate common carrier and (b) film and record what happened when he tried to fly without having government-issued ID credentials in his possession.

Despite the inept efforts of the police to destroy the evidence against themselves (Mr. Mocek’s audio and video recording of his false arrest, which he was able to recover) and their equally inept efforts to lie about what had happened in their written reports and in their testimony at Mr. Mocek’s criminal trial, Mr. Mocek was acquitted by an Albuquerque jury on January 21, 2011, of all of the charges that were trumped up after the fact to try to justify his arrest.

On November 14, 2011, Mr., Mocek sued the TSA, the city of Albuquerque and its police, and the individual TSA employees and police officers responsible for depriving him of his civil rights.

In pre-trial rulings on January 24, 2013 and February 28, 2014, a Federal District Court judge in Albuquerque dismissed all of Mr. Mocek’s complaints against the various Federal government, local government, and individual defendants on the grounds that:

  • The TSA and its employees were not responsible for what happened to Mr. Mocek after they called the police. The TSA swears that its checkpoint staff have no authority to arrest anyone or tell the police to do so. But this issue is now the subject of an explicitly acknowledged dispute between the 4th Circuit (”It is an undoubtedly natural consequence of reporting a person to the police that the person will be arrested; especially in the scenario we have here, where TSA and [airport] police act in close concert”) and the 3rd Circuit (”[I]t seems just as likely that police officers who are summoned by TSA Officials would use their own independent discretion to determine whether there are sufficient grounds to take someone into custody”).
  • The defendants all had “qualified immunity” from liability because the First Amendment right to film and record the actions of the TSA and police at a checkpoint for passengers passing through a publicly-owned and operated airport en route to flights operated by Federally-licensed interstate common carriers was either nonexistent or not “clearly established”.  This makes a mockery, of course, not just of the First Amendment itself but of the entire body of “Freedom Rider” case law concerning the First Amendment rights of interstate common-carrier (bus) passengers passing thrrough publicly and even at privately-owned and operated terminal and transit facilities.
  • The arrest of Mr. Mocek was permissible because the police “had reasonable suspicion to demand that Mocek produce identifying documents, and, upon his failure to comply, probable cause for his arrest.”  This claim fundamentally misconstrues both New Mexico law on ID and key aspects of the Supreme Court’s decision in Hiibel v. 6th Judicial District Court.

Mr. Mocek then appealed to the U.S. Court of Appeals for the 10th Circuit. Written briefs were filed by Mr. Mocek (Appellent/Petitioner) and the original defendants (Appellees/Respondents):

Oral argument before a three-judge panel of the 10th Circuit Court of Appeals is scheduled for Tuesday, March 17, 2015, beginning at 9 a.m., in Courtroom 2 of the Byron White U.S. Courthouse, 1823 Stout St., Denver, CO. Oral argument will probably last no more than an hour, but there are five cases on the same 9 a.m. argument calendar, so people planning to attend should probably allow the whole morning.

“Identification” is required to enter the courthouse, but there don’t appear to be any published rules as to what constitutes sufficient ID. According to Local Rule 57.4 (”Security”):

On request of a United States marshal, court security officer, federal protective service officer, or court official, anyone within or seeking entry to any court building shall produce identification and state the nature of his or her business. Failure to provide identification or information shall be grounds for removal or exclusion from the building.

Photography, audio or video recording, or broadcasting are prohibited anywhere inside the courthouse (not just in courtrooms).  Cameras and recording or broadcasting devices that lack any other functions are barred form the courthouse. Cell phone, laptops, and other electronic devices are allowed in the courthouse, and may be used (silently and without photography or audio or video recording or broadcasting) in the courtroom, subject to these rules of the 10th Circuit Court of Appeals and of the U.S. District Court for the District of Colorado, which manages the building in which both courts are located.

There’s more information in our FAQ’s about the original events and Mr. Mocek’s false arrest and eventual acquittal on criminal charges and about Mr. Mocek’s ongoing Federal civil rights lawsuit which is the subject of this appellate hearing.

We’ll be in Denver on March 17th to observe and report on this hearing and to show our continued support for Mr. Mocek. We invite you to join us inside and/or outside the courthouse, and/or to help pay off Mr. Mocek’s debts for the costs of defending himself against the original false criminal charges.

Supreme Court upholds legal protection of TSA whistleblower

Tuesday, February 3rd, 2015

By a vote of 7 to 2, the Supreme Court has upheld the application of the Federal law protecting whistleblowers to a TSA employee who revealed information that the TSA later defined as “Sensitive Security Information” (SSI).

Federal law protects employees against firing or other retaliation for “any disclosure of information by an employee … which the employee … reasonably believes evidences — (i) any violation of any law, rule, or regulation, or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.”

There’s an exception for properly classified information or any other information, disclosure of which is “specifically prohibited by law.”

The TSA fired air marshall Robert MacLean for going to members of Congress, the press, and eventually the public with information about TSA actions which he resonably believed was evidence of a substantial and specific threat to public safety.  The TSA said the information MacLean had released was SSI, disclosure of which is prohibited by TSA regulations.

The Supreme Court agreed with MacLean and the 9th Circuit Court of Appeals that TSA regulations prohibiting disclosure of SSI are just that, “regulations”, and not “laws”. Because disclosure of SSI is not prohibited by “law”, but only only by regulation, Federal employees who disclose SSI are protected as whistleblowrs, as long as they resonably believe that the SSI is evidence of illegality, mismanagement, waste, or danger to public health or safety as defined in the law.

Having found that disclosure of SSI is, in these circumstances, protected by the whistleblower law, the Supreme Court didn’t need to reach the question of whether the TSA could retroactively designate information as SSI or impose sanctions for disclosing it before it was designated as SSI.

Would-be TSA or other DHS whistleblowers should not underestimate the continued potential for (illegal) retaliation for whistleblowing.  The DHS defended its retaliatory firing of Mr. MacLean all the way to the Supreme Court, at huge expense to him and to the taxpayers. He still doesn’t have his job back, and hasn’t been compensated (although we hope he now will be) for his lost wages.

But we hope that despite the risks of whistleblowing, this ruling encourages TSA employees to disclose more of the information that the TSA has defined as SSI not in order to protect the public, but to protect itself against exposure of its mismanagement and its violations of individuals’ rights and other laws.

You can’t fly because… we don’t like your brother?

Monday, February 2nd, 2015

The US government’s use of smear tactics to evade judicial review of its secret, standardless administrative”no-fly” orders has reached a new low with the latest developments in the case of Gulet Mohamed.

Mr. Mohamed’s saga began when his name was added to the US no-fly list in 2010, while the then-teenaged US citizen was visiting relatives abroad. Unable to return home to his family in the suburbs of Washington, he was eventually locked up incommunicado in Kuwait for overstaying his visa.  Between sessions of torture by his Kuwaiti captors, he was interrogated by FBI agents who told him the only way out of his predicament would be to become an FBI informant.

Eventually Mr. Mohamed was able to contact family members, including his older brother Liban Mohamed. His family got a lawyer to file suit on his behalf in Federal court in Virginia, and contacted journalists including Glenn Greenwald and the New York Times.

Ever since then, Mr. Mohamed and his lawyers have been struggling for his day in court, before a judge and/or a jury, to decide whether he was rightfully deprived of his rights to travel by licensed common carrier, to return to the country of his citizenship (the USA), to travel freely within the US, and to leave the country again if he should so choose.

After four years of unsuccessful efforts by the US government to get the case thrown out of court without a trial, Mr. Mohamed was on the verge of the first-ever review by a judge of the “derogatory information” purportedly justifying an administrative no-fly order.   After the rejection of motions to dismiss the case as moot (after Mr. Mohamed was given a “one-time waiver” to return to the US) and then on the grounds that the entire question of whether he was on the no-fly list was a state secret (despite being a painfully obvious fact), the government defendants tried to buy time or avert a trial with motions to reconsider, motions for “clarification“, and a “response” to the judge’s latest and final order to show him the alleged “secrets” that amounted to a renewed request for reconsideration.

A hearing on whether the case should be dismissed or should proceed to trial was scheduled for last Friday, January 30th.

On Thursday, the day before the hearing in Gulet Mohamed’s case, the FBI — the principal defendant as the agency nominally in charge of the inter-departmental “Terrorist Screening Center” that supposedly has the final say on whether to accept “nominations” to the no-fly list — made a surprise announcement: Gulet Mohamed’s older brother Liban Mohamed has been accused of “providing material support and resources to a designated terrorist organization” and placed on the FBI’s “Most Wanted” list.  The FBI also unsealed an arrest warrant for Liban Mohamed issued almost a year ago.

(There’s more about Liban Mohamed from Glenn Greenwald — who had interviewed him several times over the years in conjunction with his brother’s lawsuit and his own later discovery that he too had been placed on the no-fly list — and from Gulet Mohamed’s lawyer Gadeir Abbas, via the AP.  It appears that, if the accusations against Liban are true, they mostly reflect the government’s success in alienating its own citizens and creating enemies through its crudely Islamophobic tactics of political repression.)

What are we to make of these developments?  We can’t be certain, but we have a theory that fits the facts.  And it doesn’t reflect well on the US government.

Throughout more than a decade of no-fly litigation, the government has treated judicial review as a greater threat than air terrorism.  People on the no-fly list, including Gulet Mohamed, have been allowed to fly (at the “discretion” of the people giving the secret orders, and possibly with “air marshals” sitting next to them). But nobody has yet been allowed to have a judge or jury review whether there is a lawful basis for depriving them of their right to travel by common carrier.

Attorney General Eric Holder personally swore to the court under penalty of perjury that it would gravely damage national security to disclose whether, or if so why, Dr. Rahinah Ibrahim was placed on the no-fly list. But when it became clear that Dr. Ibrahim’s challenge to her placement on the no-fly list would go to trial, the government admitted that she was placed on the no-fly list because an FBI agent checked the wrong box on the “nomination” form.

That may seem like a damaging admission, and it was.  But it also allowed the government to argue that, because the government had now admitted that Dr. Ibrahim didn’t “belong” on the no-fly list, it was no longer necessary for the judge to decide what would constitute sufficient grounds for a no-fly order, review any evidence that might have supported a no-fly order, to determine whether any such evidence should be disclosed to Dr. Ibrahim and/or her lawyers, or to determine whether it was a “state secret”.

Dr. Ibrahim has never been a US citizen, so the US government was able to effectively prevent her from ever flying to the US again, even while taking her off the no-fly list, by revoking her US visa. And under US law, a foreign citizen is not entitled to judicial review of a visa denial.  Mission (of secrecy) accomplished.

Because Gulet Mohamed is a US citizen, the government couldn’t moot his legal case as easily.

We suspect that the government’s goal in making public its accusations against Gulet’s brother Liban is to provide a purported basis for placing Gulet on the no-fly list — his brother is a “most wanted” person accused of terrorism — that is now public and doesn’t depend on any alleged “state secrets”.  So the government can now argue that Judge Trenga doesn’t need to inquire further into the purported “state secrets”, whether there is any further evidence against Gulet, or whether any such evidence is sufficient to justify the no-fly order approved by the FBI and secretly given to airlines by the DHS.

Three things are profoundly wrong with this picture, of course:

First, there’s no need to put Liban Mohamed on the no-fly list if there’s already a warrant out for his arrest.

Second, what happened to the presumption of innocence?

Liban Mohamed has been accused “by complaint” — that is, by a prosecutor’s accusation that hasn’t even been put before a grand jury, much less a judge.

Travel restrictions are a common condition of release pending trial, but as such they can be imposed only by a court order, on the basis of a showing that they are necessary to assure attendance at trial — not on a prosecutor’s say-so before the accused has even been brought before a judge or had a chance to contest whether there is sufficient basis for the accusations against him to justify bringing him to trial.

Third, isn’t this the crudest and most illegitimate sort of guilt by association?

What would we think, in any other situation, of a government claim that your rights can be restricted or denied because of something one of your siblings has done, even if they were proven to have done it, without the need to show that you had any involvement or culpability for their illegal actions?  Should we, and can we legally, be held liable for every act of any of our siblings (even if they have been convicted, which Liban Mohamed has not)?  And if our sibling has merely been accused but not convicted, should we and all his other siblings be subject to government constraints on our movements while he awaits trial?

This sort of familial taint comes frighteningly close to the “corruption of the blood” expressly forbidden by the Constitution even in cases of treason (a crime of which neither Mohamed brother has been accused).

Whatever the truth or falsehood or evidentiary basis, if any, for the FBI’s accusations against Liban Mohamed, they provide no excuse whatsoever for what has been done, and continues to be done, to his brother. Gulet Mohamed remains entitled to confront his accusers, to see the evidence (if any) against him, and to have the basis for the no-fly order against him reviewed by a judge and/or a jury.

“CAPPS IV”: TSA expands profiling of domestic US airline passengers

Friday, January 9th, 2015

Under color of a vestigial provision of Federal law related to an airline passenger profiling program that was discontinued more than four years ago, and applying the name of that program (and attempting to apply the same legal mandate) to an entirely new scheme, the TSA is adding a new, additional layer of passenger profiling to its pre-crime system for domestic airline flights within the United States.

The existence and TSA-mandated implementation of the new so-called “Computer-Assisted Passenger Prescreening System (CAPPS)” was first disclosed publicly in an obscure posting this Monday on the DHS website and an equally obscure notice published the same day in the Federal Register.   According to both documents, the new CAPPS scheme has been under development since at least 2013, in secret collaboration between the TSA, the inter-departmental National Counterterrorism Center (NCTC), airlines, and private contractors.

What was the old CAPPS? What is the new CAPPS? And what does this mean for the rights of travelers?

Answering these simple-seeming questions requires understanding the history of government-mandated airline passenger profiling in the US and the shell game of labels that the government has applied to profiling schemes, as well as careful parsing of this week’s abstruse and uninformative (to the uninitiated) official notices.

(more…)

US Supreme Court asked to clarify limits of TSA searches

Friday, December 5th, 2014

Are the Transportation Security Administration’s (TSA) administrative checkpoint searches limited to those “no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives” as required by the Ninth Circuit, or may the TSA conduct more extensive searches as allowed in this case by the Eleventh Circuit?

This is the first and perhaps most significant of the questions presented to the US Supreme Court by a petition for certiorari in the case of Jonathan Corbett v. TSA, et al. The petition as filed last month was rejected on trivial procedural grounds, but is being resubmitted and should appear shortly on the Supreme Court’s voluminous docket of pending petitions.

This is an important case because almost the only limit on TSA searches which the courts have recognized has been the requirement that they be limited to searches for weapons and explosives, and that TSA checkpoints not be used as pretexts for general law enforcement dragnets.

In press releases and blog posts, the TSA has claimed that it has broader authority to detain, search, and interrogate travelers about matters unrelated to weapons, explosives, or transportation security. In practice, TSA checkpoint staff and contractors routinely rifle through wallets, read and copy books and papers, and search for any evidence that might create a suspicion of any criminality. But even while upholding the legality of these searches in specific cases, courts have continued to uphold, at least in theory and rhetoric, the principle that searches at TSA checkpoints are “limited”.

So far as we can tell, the decision by the 11th Circuit in Corbett v. TSA is the first appellate opinion explicitly to approve the use of TSA checkpoints for a broader general (warrentless and suspicionless) search of all travelers for evidence of any sort of potential crime.

(more…)

Dude, where’s my FOIA?

Thursday, December 4th, 2014

We’ve heard from numerous people over the years who have requested the files about their travel being kept by US Customs and Border Protection (CBP), or made other Freedom of Information Act requests to DHS component agencies, but who have never gotten any response. Letters to and from the DHS often get lost in “security screening” or wind up in the dead letter office.

In response to a lawsuit we brought, DHS and CBP claimed that they had no record at all of one of our FOIA and Privacy Act appeals, and no record of the existence of the person who had signed the receipt for our certified letter.

And we’ve seen letters sent in response to FOIA requests made years previously, asking requesters to confirm that they still wanted the information they had requested — as though government agencies could presume that theIr own delays had caused requesters to lose interest or abandon their requests.

Unfortunately, we aren’t alone: These turn out to be standard FOIA operating procedures for the DHS and other agencies.

A recent joint letter from more than a dozen organizations that work to promote government transparency points out that it is illegal to “close” a FOIA request because of the passage of time (i.e. the agency’s own delay in responding) or because a requester doesn’t “reconfirm” that they want they records they requested. The signers of the letter report that:

FOIA requesters have reported frequently encountering improper administrative closures across a variety of federal agencies. We are including evidence of several examples…. One particularly troubling instance of administrative closure arose from a request that the Electronic Privacy Information Center (“EPIC”) made to the TSA….

Other FOIA requesters, including some of the undersigned requesters, have received similar letters. We have attached letters by the DHS, DOJ, EPA, and State…. In meetings with transparency advocates, the Department of Justice’s Office of Information has publicly stated that it supports this practice.

The signers of the joint letter request an investigation of this illegal practice by the Office of Government Information Services (OGIS), which has been assigned with oversight responsibility as FOIA ombudsman.

A recent report by auditors from  the Government Accountability Office reveals more malfeasance:

According to CBP officials… First, approximately 11,000 FOIA cases that were improperly closed in 2012 had to be reopened and reprocessed. Second, after its reorganization, a new manager found a stack of boxes containing 12,000 paper requests from 2012 that had never been entered into their processing system.

According to the GAO report, “The officials stated that CBP subsequently cleared all of these requests.” But even if that’s true, who knows how many tens of thousands of additional FOIA requests may have been lost or “improperly closed”.

If you made a FOIA request to DHS, CBP, or any other DHS component, but haven’t received a response, you should ask the agency to which you submitted your request to inform you of the status of your request. By law, each agency must have in place a telephone or online system to provide status information on all pending FOIA requests, including an estimated date for completion of agency action on each request. If they don’t, you can complain to OGIS (for free and without a lawyer), or take the agency to court.