Discourse.net

Annals of Imports

I am very much in favor of the free movement of people, and especially of ideas. So I'm very happy to read that State Department Ends Unconstitutional Exclusion Of Blacklisted Scholars From U.S.. Indeed, having once shared a meal with Tariq Ramadan I can testify that he can seem very pleasant and reasonable — which, many think, is why the former administration was so afraid of him.

In general, I'm also mostly in favor of the free movement of goods and services, although there are some exceptions. And, try as I might, I can't bring myself to cheer about the US lifting its ban on this repulsive substance.

Former Asst Police Chief Gives TSA a Failing Grade

Homeland Security Watch turns the mike over to the former Assistant Chief of the Montgomery County, Maryland, Department of Police in 'Do I have the right to refuse this search?' and she suggests that there are some pretty large gaps in TSA training and procedures at airports.

I look forward to Stewart Baker's reply.

Bush Border Control Policy Sinks Chicago's Olympic Bid

Chicago Loses Bid for 2016 Olympic Games

It looks as if the Bush administration policy on making it much harder to get a US visa (which Obama has yet to alter) has come home to sink Chicago's Olympic bid:

In the official question-and-answer session following the Chicago presentation, Syed Shahid Ali, an I.O.C. member from Pakistan, asked the toughest question. He wondered how smooth it would be for foreigners to enter the United States for the Games because doing so can sometimes, he said, be “a rather harrowing experience.”

This is the same stupid anti-visitor policy that is destroying American higher education by driving graduate students to UK and other universities. Here at UM, for example, we have had great trouble getting visas for some great students who want to take our LL.M for foreign students — including one who had a US government scholarship!

Maybe some good can come from this stunning defeat for Obama's personal diplomacy: bring back the pre-9/11 visa rules that made this country a magnet for tourists, investors, and the world's best and the brightest.

Important Freedom to Travel Decision From the DC Circuit

It's rare that I get to praise an opinion by Judge Sentelle, but today's the day.

Yesterday the DC Circuit released Caneisha Mills v. DC, [link fixed] an appeal of the trial court's failure to enjoin the District of Columbia's police department's so-called neighborhood safety zone (NSZ) plan. Tthe NSZ put a police cordon around a high crime neighborhood in DC. Police would stop every car going into the neighborhood, but not pedestrians or cars exiting, and interrogate the drivers as to why they were going there. If the answers were not satisfactory, the police would not let the driver enter. According to the court, 48 vehicles were turned away during the operation of the program.

The panel ruled unanimously that these suspicionless stops violated the Fourth Amendment. It distinguished all the other roadblock cases, including United States v. Martinez-Fuerte, in which the Supreme Court permitted suspicionless routine stops of vehicles at checkpoints on major roads leading away from the Mexican border — even quite far from the border. Instead, Sentelle relied on City of Indianapolis v. Edmond, 531 U.S. 32, 48 (2000) (“Because the primary purpose of the Indianapolis checkpoint program is ultimately indistinguishable from the general interest in crime control, the checkpoints violate the Fourth Amendment.”).

Notably absent from the Court's opinion was any suggestion that motorists have a duty to identify themselves to police in the absence of a Terry stop (one based on some suspicion of wrongdoing),

Overall, it's a right decision, and good one for civil liberties.

Fingerprint Exit Scans Only for US Visitors

The story that we'll all have to undergo fingerprint scans to leave the US is apparently false, at least for now.

It got wide currency, e.g. Slashdot's Homeland Security To Scan Citizens Exiting US, but according to Stewart Baker, ex Dept. of Homeland Security policy czar, it's not quite true; instead, only foreigners will be subjected to the fingerprint screening on exit. As Baker notes, this isn't really a security measure (since whatever harm the exiting person might have committed is a done deal by then), but rather about immigration controls. And the (not cost-effective) scans are something mandated by Congress, not a choice made by either the Bush or Obama administrations.

I think there would be some constitutional issues in requiring a fingerprint scan to exit the US (but not, alas, if foreign countries require it as a condition of entry, and airlines do it here to save the cost of returning travelers who are held undesirable). But that's for another day, it seems

TSA Follies

CBS, Fliers Complain About X-Rated Security Screenings

Horror stories, plus a statistic:

out of 2 billion passengers screened nationwide since 9-11, there have been only 110,000 abuse complaints.

Only?

Let's see. 110,000 complaints per 2bn passengers. 110 per 2m. 1.1 for every 20,000, or one per 18,181. What's that per day, per airport?

MIA runs 2.8m passengers per month. If it has average TSA staff, that would generate about five complaints of abuse every day at MIA alone. Doesn't sound like “only” to me!

Homeland Security Official Expresses Interest in Shock Bracelets for Air Travellers

Cosmic Iguana has found something incredible at TURNING TRAVELERS TO PRISONERS. The source is the Washington Times, so I suppose it's suspect.

A senior government official with the U.S. Department of Homeland Security (DHS) has expressed great interest in a so-called safety bracelet that would serve as a stun device, similar to that of a police Taser®. According to this promotional video found at the Lamperd Less Lethal website, the bracelet would be worn by all airline passengers.

This bracelet would:

• take the place of an airline boarding pass

• contain personal information about the traveler

• be able to monitor the whereabouts of each passenger and his/her luggage

• shock the wearer on command, completely immobilizing him/her for several minutes

The Electronic ID Bracelet … would be worn by every traveler “until they disembark the flight at their destination.”

They have a pdf of what seems to be a letter from Homeland Security to back up the story: page one and page two.

Otherwise I'd treat it like My First Cavity Search.

Dutch MEP Sues US To Release Her Airport Blacklist File

In How America is snooping on YOU … and may soon be snooping a whole lot more, “This is London” describes a lawsuit by Dutch Liberal MEP Sophie In’t Veld in which she seeks to find out why the US government keeps pulling her over for security searches at airports.

The article claims that this is the first lawsuit of its kind. Can that really be so?

Enough to Make You Miss 'Duck and Cover'

Feminist Law Professors says, Flying With a Young Child This Summer? Here's a Book To Buy.

I think it's a joke, but who knows these days.

I Apologize in Advance For TSA Making You Miss Your Flight

Boing Boing reports that TSA is now requiring that you remove all electronic devices from your carry-on bags, including cables etc. and place them in a separate bin to be scanned at the security checkpoints. I could hold the line up ten minutes myself given all the gear I travel with…

No word at present about this new assault on air travel at TSA's new oh-so-friendly PR blog (“Liquids cover 70% of the earth and they also make up a good percentage of our comments from the traveling public.”).

Don't let the smiling faces fool you: the more we engage in security theater and 'protect' against minimal threats to look good while diverting resources from things that matter, the more that any hypothetical enemies are laughing.

What He Said

This hits the nail on the head:

Racial Profiling at U.S. Airways - TalkLeft: The Politics Of Crime Six imams attending a conference in Minneapolis took time to pray at the gate before boarding a U.S. Airways flight to Phoenix. A passenger handed a note to a flight attendant pointing out the "6 suspicious Arabic men" on the plane. Disturbed by their "unsettling" behavior -- which apparently consisted of praying and asking for seat belt extensions -- the crew told the police that the imams needed to be removed. They were escorted from the plane in handcuffs and detained for five hours before authorities conceded that they posed no threat.

U.S. Airways refused to book the imams on another flight to Phoenix. According to the executive director of the Council on American-Islamic Relations, Muslims (both passengers and airline employees) have more complaints about U.S. Airways than other airlines. The incident prompted the Council and the NAACP to ask for Congressional hearings on racial profiling in airports.

Can you imagine the outcry from the religious right if six Christian pastors were removed from a flight because they prayed together at the gate? U.S. Airways would be deservedly out of business in a week.

Freedom Flier Baggies

It's a movement. A subject on which I hope to have more to say soon. Meanwhile, enjoy this Boing Boing: HOWTO make a "Kip Hawley is an idiot" Freedom Baggie:

KipHawleyIsAnIdiot.com gives you instructions for making your own "freedom baggie" with your opinion of the TSA chief.

I flew from SFO to LAX yesterday morning, and was robbed at gunpoint by a TSA agent, who stole my cologne, face-wash, and moisturizer. She said that my moisture baggie could only contain vessels of 3 oz or less' worth of moisture. I pointed out that all these vessels did have less than 3 oz' worth of moist substances in them, as they were all half-empty, and she said yes, but the vessels were capable of holding more than 3 oz. Apparently, the risk is that a hair-gel bomber will take to the skies, and use a syringe to refill the tube of face-scrub through its tiny little aperture, somehow mixing some kind of moisture-bomb in the plastic tube without melting it. Apparently, liquids acquire magical explosive properties when they are in quantities of more than 3 oz.

A TSA supervisor took me aside and asked me why I was so upset. I said that my family left the Soviet Union to escape arbitrary authority, and the seizure of property by the state. She suggested that I send in a report to the TSA complaining, and I laughed and asked her how many of those people get added to the No-Fly List.

Of course, this is all a hollow joke. The risk of someone mixing a binary hair-gel explosive has been dismissed by chemists as a near-zero. Meanwhile, as KipHawleyIsAnIdiot.com points out, "air cargo is not screened and there is still no point-to-point baggage matching."

Kip Hawley Is An Idiot And/Or Employs Them

"It is seldom that liberty of any kind is lost all at once."
-- David Hume

Drip, drip, drip:

I was detained at the TSA checkpoint for about 25 minutes today: Yesterday, while discussing the new rules a fellow Flyertalker suggested we write "Kip Hawley is an Idiot" on the outside of our clear plastic quart bags. So I did just that.

At the MKE "E" checkpoint I placed my laptop in one bin, and my shoes, cell phone and quart bag in a second bin. The TSA guy who was pushing bags and bins into the X-ray machine took a good hard look, and then as the bag when though the X-ray I think he told the X-ray operator to call for a bag check/explosive swab on my roller bag to slow me down. He went strait to the TSA Supervisor on duty and boy did he come marching over to the checkpoint with fire in his eyes!

He grabbed the baggie as it came out of the X-ray and asked if it was mine. After responding yes, he pointed at my comment and demanded to know "What is this supposed to mean?" "It could me a lot of things, it happens to be an opinion on mine." "You can't write things like this" he said, "You mean my First Amendment right to freedom of speech doesn't apply here?" "Out there (pointing pass the id checkers) not while in here (pointing down) was his response."

Here, incidentally, is Kip Hawley's official bio.

US Government Blocks Re-Entry of Citizens

Ed Hasbrouk has pointers to an incredible story: :

The USA has forbidden any airline from transporting to the USA a Mr. Jaber Ismail, a natural-born USA citizen and California resident, not a dual citizen. They aren't saying they will arrest him or detain him for questioning on arrival. They aren't asking the government of the country he has been visiting to arrest him. But they won't let him come home.

There's been some discussion of this as a Constitutional question, but it's actually much more fundamental as a question of international human rights law, including treaties which the USA has actually ratified...

News articles vary on this: some say that the government is just preventing airlines from flying them home -- which is bad enough! -- others say they are barred from entering the country at all:

Federal authorities told the [San Fransisco] Chronicle that although neither Muhammed nor Jaber Ismail has been charged with a crime, they are barred from reentering the United States unless they submit to further FBI questioning in Pakistan."

I have doubts about the legality of the no-fly rule although presumably the government might defend it by saying that victims of the new blackballing could sail or fly to Canada or Mexico and then walk in to the USA. In any case, this abuse of it should certainly demonstrate why it's a bad policy. And when, as in this case, it matures into a de facto no-entry ruling, that ought to be unconstitutional.

It seems that Ismail has a lawyer who understands the issues,"They want to come home and have an absolute right to come home," said [Julia Harumi] Mass, who has filed a complaint with the Department of Homeland Security and a petition with the Transportation Security Administration.

"They can't be compelled to waive their constitutional rights under threat of banishment," Mass said. "The government is conditioning the return to their home on cooperation with law enforcement."

Aviation watch lists were created in 1990 to keep terrorists off planes and track drug smugglers and other fugitives. But since al Qaeda's attacks on Sept. 11, 2001, the government has expanded the lists significantly. Members of the public cannot find out if, or why, they are on a no-fly list.

Michael Barr, director of the aviation safety and security program at USC, said the Ismail case appears to be unusual in the realm of federal terrorism investigations.

"You become what is called a stateless person, and that would be very unprecedented," Barr said.

Speaking of which ... our friends at Homeland Security have a proposal to, as Ed puts it,

to formalize the power of the DHS to prohibit anyone (including citizens of the USA) from traveling to or from the USA (or, for that matter, through the air over the USA, such as on flights between Europe and Mexico, or Canada and Latin America) except by express prior permission of the DHS.

Ed's got a lot of useful information on that proposal as well.

TSA Policy Change: Connect the Dots

Is it just possible that there is a connection between today's report that TSA Screeners Will Replace Contractors at U.S. Airports for ID inspections and the campaign by Ed Hasbrouck to find out the legal authority under which non-TSA workers demand ID?

TSA Airport Detention Authority Questioned by Travel Expert

Edward Hasbrouck, aka "The Practical Nomad" is both a noted travel writer and a civil liberties activist. He got stopped at Dulles Airport, and has been trying to find out under what authority ever since. The latest is the rather limited but still interesting fruits of his FOIA request: TSA report on what happened to me at Dulles Airport.

Ed's earlier reports in this series

• 6 June 2006: Unanswered questions at Dulles Airport
• 9 June 2006: Privacy advice to the Department of Homeland Security
• 16 July 2006: Dialogue with the TSA Privacy Officer
• 21 July 2006: Why was I detained by police at Dulles Airport?

DHS Mission Creep, the Incompetent Way

Ray LeMoine, Los Angeles Times, Terrorist in a bootleg T-shirt on what DHS is screening for at our borders: local offenses, not terrorist contacts.

It's a funny column in an awful sort way. We expected DHS mission creep. Normally, though, it takes a little longer...and the creep adds to the mission rather than overtaking it. But then again, this is the DHS, the people making a strong bid to displace the VA for the coveted title of "most dysfunctional agency."

That said, though, on reflection I find that I'm not as offended as the author by the idea that people with warrants out for them might be stopped at the border in either direction. Even if the warrant is from a state or local court, why is this an evil form of federal assistance? I'm a big supporter of the right to travel, but does this offend it? I'm dubious.

And, maybe in an odd way it is reassuring to know that DHS still isn't competent enough to make use of all those wiretaps...

Bad Day at Dulles

Travel writer and civil rights activist Edward Hasbrouck had a bad day at Dulles Airport, which as he says, leaves many Unanswered questions:

... the TSA has crafted its procedures so that the demand for identification credentials is made neither by the TSA itself nor the airline, but by a third party whose identity and authority are entirely unverifiable to the traveller, and who is accountable to the traveller neither through government legislative and regulatory procedures nor through enforcement of contractual rights (since they have no contractual relationship to the traveller).

To give an added frisson of resemblance to countries with corrupt or dysfunctional police and governments, the people in uniform demanding people's credentials are lying about being government employees. The real government employees watching them don't care. And if, like me, you so much as ask a few polite questions about what is going on, you are detained, threatened with arrest, searched, investigated, your papers copied by the government for your permanent (I can only presume) dossier, and the unaccountable third party (and, in the case of any RFID passport, anyone else within range with a reader in their luggage) left with the unregulated legal "right" to use and sell any data obtained from its government-coerced scrutiny of your credentials.

Where Left Meets Right

The place where the traditional left and the traditional right meet—as against the radicals currently in power—is civil liberties. So I find my self agreeing with, of all people in the world, a far-right ex-Congressperson who I would have put on my list of “top 5 nuts in office” while she served.

FAS Secrecy News, [IP] The Arrival Of Secret Law: Last month, Helen Chenoweth-Hage attempted to board a United Airlines flight from Boise to Reno when she was pulled aside by airline personnel for additional screening, including a pat-down search for weapons or unauthorized materials.

Chenoweth-Hage, an ultra-conservative former Congresswoman (R-ID), requested a copy of the regulation that authorizes such pat-downs.

“She said she wanted to see the regulation that required the additional procedure for secondary screening and she was told that she couldn't see it,” local TSA security director Julian Gonzales told the Idaho Statesman (10/10/04).

“She refused to go through additional screening [without seeing the regulation], and she was not allowed to fly,” he said. “It's pretty simple.”

Chenoweth-Hage wasn't seeking disclosure of the internal criteria used for screening passengers, only the legal authorization for passenger pat-downs. Why couldn't they at least let her see that? asked Statesman commentator Dan Popkey.

“Because we don't have to,” Mr. Gonzales replied crisply.

“That is called 'sensitive security information.' She's not allowed to see it, nor is anyone else,” he said.

There's something seriously wrong here, if we can't even see the rule (as opposed to the screening criteria which might legitimately be kept from the public) authorizing the search.

Which is why I'm involved in various efforts to make the government cough up the text of the alleged regulation, and justify it.

You can read more about the ugly things that TSA is up to regarding the right to travel at Ed Hasbrouk's blog. Also see Emergent Chaos.

CAPPS II Dead or UnDead?

MSNBC says that the TSA is hinting hard that CAPPS II is dead. Except when it isn't:

Homeland Security Secretary Tom Ridge said officials had all but scrapped plans for the controversial Computer Assisted Passenger Prescreening System, known as CAPPS II, which has come under criticism from privacy advocates and some members of Congress.

…

Asked whether the program could be considered dead, Ridge jokingly gestured as if he were driving a stake through its head and said: “Yes,” USA Today reported.

Sounds good, right? Except this is just like when they killed the Poindexter TIA program: (but really didn't¹):

Ridge said a new program with a different name might be developed to replace CAPPS II. It could be replaced by a new “registered traveler” program if enough people volunteer to provide personal information, the report said.

So Registered Traveller + secret program to be (not) announced = CAPPS III. Oh joy.

Meanwhile, it will be interesting to see if the government argues that Frontier Travel v. TSA is now moot.

---

¹ When the program went 'black' they just stopped worrying about privacy:

“But when the Information Awareness Office was disbanded and the work on many parts of TIA—which is ongoing—became classified, the privacy work stopped, Poindexter said.

“The privacy work was part of what was cancelled,” he said. “But I think it should continue. And I think that eventually it will be continued. I'm an optimist.”

Anchorage Daily News Says, "Good Suit"

The Anchorage Daily News editorialized in favor of the Frontier Travel case today.

Good suit

Security, yes; secrecy, no.

The Alaskans who filed suit last week against the Transportation Security Administration over CAPPS II did their fellow citizens a service. The system needs adjustment.

The Computer Assisted Passenger Prescreening System aims to catch terrorists and other criminals before they board aircraft. But there've been too many cases of innocent people being tagged — and then unable to get off the list.

Without giving away the store to the dark side, the government needs a swift and sure process to correct mistakes. Otherwise, Americans are subjected to the Orwellian absurdity endured by Master Sgt. Michelle Green, a 16-year Air Force veteran who is on the “No-Fly” list. When she asked how her name got there and how to get it off the list, she was told that information is classified. That's unacceptable.

Americans understand that flying changed after Sept. 11, 2001. Most take security measures in stride; most security folks just do their job courteously. But we need a swift process to put a check on abuse — or even just computer foibles.

Alaskans and Americans are right to challenge such a system, even if it's still a work in progress. Americans are rethinking some of the actions taken in the heat of the days after Sept. 11 and beginning to discern which are necessary for security and which cost us freedom but make us no safer.

The suit by Alaskans Bill Beck, Sally Huntley, John Davis and Charles Beckley is welcome. Americans want to fly safely, but not with the baggage of Big Brother.

BOTTOM LINE: Lawsuit over passenger screening will help keep Uncle Sam honest and liberties alive.

Press Coverage of Frontier Travel Case

Good coverage of the filing of the Frontier Travel lawsuit:

• The New York Times, On the Road: When Flying Is Truly the Only Way to Go, which includes this interesting quote:

“Mark Hatfield, a T.S.A. spokesman, said yesterday that the complaint's assertion of systemic secrecy was off base. 'There will be nothing secret' about the process for developing CAPPS2 and enlisting airlines in carrying it out, he said. While the actual text of the security directive outlining CAPPS2 won't be made public for obvious security reasons, he said, 'I'll put out a press release that paraphrases it' when the directive is issued.”

Of course, that's not a legally enforceable promise.

• Associated Press, Lawsuit seeks review of air travel screening system
• Reuters, Alaskans Sue TSA to Block Passenger Screenings
• GovExec, Group of Alaskans sues TSA over screening system
• Wired, Alaskans Sue to Stop CAPPS II
• KTUU-TV, Alaska travel agents to file lawsuit about air passenger security

Suing the TSA

More later, but meanwhile just a note to say that I'm involved in this lawsuit, about which there is now early press coverage.

The case raises very interesting and difficult legal issues.