Archive for the ‘Secret Law’ Category

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.

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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.

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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.

Judge insists on right to review “no-fly” order

Monday, December 1st, 2014

Four years after the US government put Gulet Mohamed on its “no-fly” list, Mr. Mohamed is still waiting for his day in court. But he hasn’t given up, and he’s getting slowly closer to the first judicial review of the merits of a no-fly order.

Here’s some quick background and then an update on his recent legal travails:

Mr. Mohamed, a US citizen of Somali ancestry, was 18 years old and visiting family members in Kuwait when the US put him on the no-fly list.  When his visa expired, he ended up in a Kuwaiti immigration prison, where between sessions of torture he was interrogated by FBI agents who told him (as they have told other US citizens on the US no-fly list) that he would be allowed to go home to the US only if he became an FBI informer.

Eventually Mr. Mohamed was able to contact his family in Virginia, and they found him a lawyer from the Council on American-Islamic Relations. Faced with an order from U.S. District Court Judge  Anthony Trenga to show cause why the court shouldn’t issue an injunction prohibiting the government from interfering with Mr. Mohamed’s right to return to the US, the government let him fly back to the US, and then tried to get the court to dismiss his complaint as “moot”. But that initial attempt to get Mr. Mohamed’s case thrown out of court was unsuccessful, as were a series of motions and appeals by the government during the last four years on the grounds of standing, jurisdiction, and “state secrets”.

(The portion of the court docket freely available through PACER is here, and our previous reports on the case are here.  The most thorough coverage of recent legal developments has been by Steven Aftergood of the Federation of American Scientists’ Project on Government Secrecy.)

The last time we reported on Mohamed v. Holder, in September of this year, the government was still trying to persuade Judge Trenga to reverse his prior rulings and dismiss Mr. Mohamed’s case on the ground’s that, “There is no fundamental right to international travel.” The government was also asking Judge Trenga to reconsider his order that the government must allow him to review the allegedly secret evidence in camera before he decides whether it is, in fact, properly designated as “state secrets” and if so, whether he can decide the case without relying on any legitimately “secret” evidence.

In October, the government handed over the allegedly “secret” evidence to Judge Trenga (but not to Mr. Mohamed or his lawyers), while continuing to argue that it shouldn’t be required to do so.  After in camera review of the allegedly secret documents, Judge Trenga ruled that the case could go forward without the need to decide whether they were actually state secrets: “None of the documents are so related to plaintiff’s procedural due process claims as to prevent either the plaintiff or the defendant from presenting or defending against those claims without the use of any of these documents…. The state secrets privilege is a judicially created rule of evidence, not a doctrine of sovereign immunity or non-justiciability.”

Faced with the imminent prospect of a decision on the merits of Mr. Mohamed’s claim that he was denied due process of law when the government secretly ordered airlines not to transport him, the government asked for a “do-over”: a three-month postponement of the court case and a “remand” to the FBI to give the government time to develop a revised set of extrajudicial administrative “no-fly” decision-making procedures, and to subject Mr. Mohamed to this “kangaroo court version 2.0.”  This is essentially the same request that the government has made in another no-fly case, Latif v. Holder, in which U.S. District Judge Anna Brown has already found that the plaintiffs’ rights were violated.

According to Mr. Mohamed’s response, the government’s request for a do-over is, in effect, yet another attack on the authority of the court to order redress for violations of the Constitution by Federal agencies:

Defendants’ assertion that “the only appropriate result” of a ruling in Plaintiffs’ favor on their substantive claims would be a remand order to “apply new procedures in reaching a new substantive decision,” … misconstrues the nature of Plaintiffs’ claims and implies that the only remedy for a substantive due process violation is further agency proceedings. That is not the case. If, as Plaintiffs’ request, the Court finds that Defendants violated Plaintiffs’ substantive due process rights by placing them on the No Fly List, the Court plainly has the authority to order Plaintiffs to be removed from the List.

On November 20th, Judge Trenga denied the government’s motion for postponement and “remand”. That leaves Mr. Mohamed’s claims that his rights were violated on schedule for briefing, argument, and decision on their merits by Judge Trenga.

We look forward to seeing Mr. Mohamed finally, after four years of government obstruction and foot-dragging, receive his day in court, perhaps some time in early 2015.

“Travelers, say bon voyage to privacy”

Friday, October 17th, 2014

We talked at length with Watchdog investigative reporter Dave Lieber for his column in today’s Dallas Morning News: Travelers, say bon voyage to privacy.

Lieber hits the nail on the head by calling out how few travelers realize that the U.S. government is keeping a permanent file of complete mirror copies of their reservations:

Did you know that when you buy an airline ticket and make other travel reservations, the government keeps a record of the details?

If airlines don’t comply, they can’t fly in the U.S., explains Ed Hasbrouck, a privacy expert with the Identity Project who has studied the records for years and is considered the nation’s top expert.

Before each trip, the system creates a travel score for you…. Before an airline can issue you a boarding pass, the system must approve your passage, Hasbrouck explains….

The idea behind extensive use of PNRs [Passenger Name Records], he says, is not necessarily to watch known suspects but to find new ones.

Want to appeal? “It’s a secret administrative process based on the score you don’t know, based on files you haven’t seen,” Hasbrouck says….

Hasbrouck says: “You can’t keep files on everybody in case you want some dirt on them. That’s what J. Edgar Hoover did. We’ve been through this before in this country. Think of all the ways those files targeted innocent people and were misused. People’s lives were destroyed on the basis of unfounded allegations.

“Do we want to go back to that?”

For those whose curiosity has been piqued, here are links to more about this issue:

The FAQ, What’s in a Passenger Name Record (PNR)?, includes links to examples of PNR data, templates to request your travel history and PNR files from DHS, and information about our lawsuit against DHS to try to find out what files it has about us and how it has used and “shared” them.

Requirements for airlines to send passenger data to the government, and receive individualized (per-passenger, per-flight) permission from the government before issuing a boarding pass, are contained in two separate sets of DHS regulations: Secure Flight for domestic flights and the Advance Passenger Information System (APIS) for international flights. (More about the APIS regulations.)

The system of “pre-crime” profiling and assigning scores to all air travelers was discussed in recent government audit reports and at a Congressional hearing last month, and in a front-page story in the New York Times, in which we were quoted, last year.

There’s a good overview of the government’s travel surveillance and control process in a talk by Edward Hasbrouck of the Identity Project that was broadcast on C-SPAN</a> last year. The slides from that talk include diagrams of the system and examples of PNR data and other government files about travelers.

“Jetsetting Terrorist” confirms DHS use of NSA intercepts

Thursday, October 16th, 2014

We’ve been reading the Jetsetting Terrorist blog (highlighted last week by Boing Boing) to see what we can learn from the anonymous author’s chronicles of his experiences traveling on commercial airlines, within the U.S. and internationally, after being convicted of a nonviolent misdemeanor criminal offense the U.S. has since defined as “terrorism”:

Since 2009, I’ve been on the TSA’s “terrorist watch list” [because] years ago I was convicted of an activist-related property crime.  The government deemed it “terrorism.” My “weapon of mass destruction” was a small tool purchased at a hardware store for under $30. My crime resulted in a loss of profits to several businesses. No one was injured. And it wasn’t even a felony.

Some of what the Jetsetting Terrorist describes is unsurprising, such as the inconsistency and unpredictable of the TSA’s “There are no rules” operational practices (a/k/a, “We make up the rules as we go along”, or “The rules are whatever we say they are today”). Or the confusion of TSA and airport checkpoint contractor staff, accustomed to carrying out crude profiling on the basis of race, religion, and national origin, when they receive instructions to treat a white-skinned hipster techie U.S. native like the Jetsetting Terrorist as a second-class citizen.  We’ve heard many accounts like these from other travelers about the TSA’s real-world Standard Operating Procedures, as distinct from those contained in the secret written manuals for TSA staff and contractors.

Beyond that, several things stand out from our reading of the Jetsetting Terrorist blog:

  1. Anyone could be subjected to the same treatment as the “Jetsetting Terrorist”. Millions of people in the U.S. have been convicted, at some point in their lives, of some nonviolent property crime or other nonviolent misdemeanor.  There are no limits to what crimes the government can retroactively define as “terrorism”, and courts have enforced few constraints on what additional burdens, restrictions, and prohibitions can retroactively be imposed — by law or by extrajudicial administrative fiat — on anyone who has ever in their life been convicted of any crime.  Once someone has a criminal record, they are considered to “deserve” whatever they later get when additional administrative infirmities are later piled on to their long-ago-completed judicially-imposed sentence.  And it’s not just people convicted of crimes later defined as “terrorism”. Where will it end? “First they came for the terrorists.  Then they came for the drug dealers…. Then they came for you and me.”
  2. So-called “watchlists” are really blacklists. The word “watchlist” is an Orwellian euphemism which the government uses to minimize its infringement of the rights of people on these lists. Properly speaking, a “watchlist” implies a list used to target surveillance, and the consequences of being on a “watchlist” are limited to being watched, i.e. surveilled. A bad thing, but very difference from the consequences of being on a blacklist, on the basis of which the government actively interferes with one’s movements, lays hands on one’s body (calling genital groping by another minimizing euphemism, “patdown”), and rips open one’s luggage to paw through one’s possessions.
  3. DHS pre-crime profiling is not binary, and can lead to many levels of consequences. Most travelers  naively assume that unless you are “on the no-fly list”, there are only three levels of pre-crime “risk scores” and consequent levels of intrusiveness of DHS action against you at airports: the TSA Pre-Check line, the “normal” (in the post-9/11 sense of “normal”) screening line, and the “secondary screening” line for those “selectees” who get “SSSS” printed on their boarding passes. But as the experiences reported by the Jetsetting Terrorist remind us, not all “selecteees” are selected for like treatment.  As was made public in a government filing in the first no-fly trial last year, each entry on the “selectee” list is assigned a numeric “handling code”. The range of handling codes and their meanings remains secret, but while some “selectees” merely get the full monty (”enhanced patdown”), others like the Jetsetting Terrorist are prevented from proceeding through TSA checkpoints until the checkpoint staff phone the FBI to report their itinerary and get permission for them to travel. In the case of the Jetsetting Terrorist, everyone on the same plane is subjected to an additional guilt-by-proximity ID document check and luggage inspection at the gate, at the entrance to the jetway.
  4. DHS components are among the “customers” for NSA electronic surveillance. On a recent international trip, the Jetsetting Terrorist spent time, while he was abroad, with a friend from the US: “My friend went back one day before me. We didn’t arrive together. We didn’t leave together. We don’t live anywhere near each other. Separate itineraries, everything. But a few hours before I was to leave for the airport, I get an email. Customs got her. Details were sparse, but she said they’d detained her for over an hour, asked her a thousand questions, took her computer in the back room, and asked her about me. A lot about me.  What’s most interesting: Somehow, they knew we were traveling together. This could not be gleaned from airline records. In fact, it could only have been learned of from electronic surveillance.”  Assuming these facts are accurately reported, we agree. (The Jetsetting Terrorist blog is anonymous and unverifiable. But we have no reason to doubt its legitimacy.)  This isn’t the first report of DHS employees questioning a US citizen about information that could only have been obtained from surveillance of electronic communications: that’s part of the basis for an ongoing  lawsuit in federal court in Indiana.  We continue to believe, as we said when  we reported on that case earlier this year, that it’s more likely that the DHS is one of, and possibly the most frequent, “customer” and user of information obtained from the illegal NSA electronic communications dragnet than that the DHS is running its own parallel illegal surveillance scheme on the same scale.

The Jetsetting Terrorist is looking for help finding a way to film and/or record his interactions with the TSA, in spite of being separate from his belongings while he is being searched and interrogated.  Since he plans to distribute these recordings publicly, they would be protected from search (as would his other work product documents and data) by the federal Privacy Protection Act, 42 USC 2000aa.  Most journalists aren’t aware of this law.  But it has important implications at airports, and protects anyone with an intent to distribute information publicly — not just full-time professional journalists.

U.S. citizen sues the State Department for a passport

Tuesday, October 14th, 2014

A Yemeni-American U.S. citizen sued the U.S. State Department today, asking a federal court in Michigan, where he lives, to order the State Department to issue him a U.S. passport.

Ahmed Nagi was naturalized as a U.S. citizen twenty years ago.  In May of 2013, after his previous U.S. passport expired, Mr. Nagi applied to renew his passport. He went in person to the State Department’s Passport Office in Detroit, and paid the $60 extra fee for “expedited” passport renewal service.

Normally, a U.S. citizen who applies in person at a Passport Office on an expedited basis — especially if they have been issued a U.S. passport previously, and are applying for a renewal rather than a first-time passport — can pick up their new passport within a couple of days, even the same day if they have evidence of imminent planned international travel.

Mr. Nagi, however, is still waiting for a new passport, sixteen months after he submitted his application. In response to repeated inquiries, Mr. Nasgi and his lawyers have been told only that his passport application is still “pending”. The State Department has used the impossible-to-complete “long form” as a pretext to hold up processing of some disfavored passport applications, but hasn’t asked Mr. Nagi for any additional information or told him anything about why his application hasn’t been approved.

In the meantime, Mr. Nagi is legally prohibited from leaving the USA without a passport.

The U.S. government appears to have decided that there is no legitimate reason for any U.S. citizen to visit Yemen, whether as a tourist or to visit friends or relatives. In a blatant case of discrimination on the basis of national origin, all U.S. citizens of Yemeni birth or ancestry are being treated as presumptively terrorists and subject to de facto travel restrictions, even if they haven’t individually been placed on any U.S. government blacklists.  Hundreds of U.S. citizens are currently stranded in Yemen, unable to leave Yemen or return to the U.S., because the U.S. Embassy in Sana’a has been systematically seizing the passports of any Yemeni-Americans who go to the embassy to request consular services as U.S. citizens.

According to one of Mr. Nagi’s attorneys, Lena Masri of the Council on American-Islamic Relations, “The federal government has routinely delayed the processing of passport applications for Muslims of Yemeni origin for an indefinite period of time.”  By keeping passport applicants in indefinite limbo, the State Department hopes to exercise a “pocket veto” of passport issuance and international travel, without issuing formal decisions denying passport applications that would be subject to judicial review.  “This lawsuit will challenge the federal government’s unchecked practice of denying these individuals their constitutionally-protected right to travel without affording them their right to due process of law.”