Took a long time, but the courts are coming around. Here’s a major decision from Judge Anna Brown in the Latif v. Holder case. (Via Just Security Blog.)
Category Archives: Law: Right to Travel
David Kravitz’s Wired article, How Obama Officials Cried ‘Terrorism’ to Cover Up a Paperwork Error begins like this:
After seven years of litigation, two trips to a federal appeals court and $3.8 million worth of lawyer time, the public has finally learned why a wheelchair-bound Stanford University scholar was cuffed, detained and denied a flight from San Francisco to Hawaii: FBI human error.
FBI agent Kevin Kelley was investigating Muslims in the San Francisco Bay Area in 2004 when he checked the wrong box on a terrorism form, erroneously placing Rahinah Ibrahim on the no-fly list.
What happened next was the real shame. Instead of admitting to the error, high-ranking President Barack Obama administration officials spent years covering it up. Attorney General Eric Holder, Director of National Intelligence James Clapper, and a litany of other government officials claimed repeatedly that disclosing the reason Ibrahim was detained, or even acknowledging that she’d been placed on a watch list, would cause serious damage to the U.S. national security. Again and again they asserted the so-called “state secrets privilege” to block the 48-year-old woman’s lawsuit, which sought only to clear her name.
The article includes a link to Attorney General Eric Holder’s declaration in Ibrahim v. DHS. It’s pretty awful — even worse than the article makes it sound. Here are the last two paragraphs (emphasis added):
16. On September 23, 2009, I announced a new Executive Branch policy governing the assertion and defense of the state secrets privilege in litigation. Under this policy, the Department of Justice will defend an assertion of the state secrets privilege in litigation, and seek dismissal of a claim on that basis, only when necessary to protect against the risk of significant hann to national security. See Exhibit 1 (State Secrets Policy),§ l(A). The policy provides further that an application of a privilege assertion must be narrowly tailored and that dismissal be sought pursuant to the privilege assertion only when necessary to prevent significant harm to national security. !d. § 1(B). Moreover, “[t]he Department will not defend an invocation of the privilege in order to: (i) conceal violations of the law, inefficiency, or administrative error; (ii) prevent embarrassment to a person, organization, or agency of the United States Government; (iii) restrain competition; or (iv) prevent or delay the release of information the release of which would not reasonably be expected to cause significant harm to national security.” !d. § 1(C). The policy also establishes detailed procedures for review of a proposed assertion of the state secrets privilege in a particular case. !d. § 2. Those procedures require submissions by the relevant Government departments or agencies specifying “(i) the nature of the information that must be protected from unauthorized disclosure; (ii) the significant harm to national security that disclosure can reasonably be expected to cause; [and] (iii) the reason why unauthorized disclosure is reasonably likely to cause such harm.” ld § 2(A). Based on my personal consideration of the matter, I have determined that the requirements for an assertion and defense of the state secrets privilege have been met in this case in accord with the September 2009 State Secrets Policy.
I declare under penalty of perjury that the foregoing is true and correct.
I think someone should lose their job over this. Perhaps that someone is the person who misinformed the Attorney General as to the facts of the case, perhaps not. In any event, Attorney General Eric Holder owes us all an explanation as to why that someone is not him.
Dr. Rahinah Ibrahim won her case against the DHS for erroneously putting her on the no-fly list (see No Fly List on Trial for background). The case was characterized by plausible allegations of various government shenanigans designed to keep Dr. Ibrahim’s US citizen daughter from attending the trial.1 And of course Dr. Ibrahim herself couldn’t come either since she couldn’t fly there.
Rather than issue a public decision, the court issued a “public notice” stating that “findings of fact and conclusions of law” have been issued but would not be published. I’ve never seen one of those before. Usually courts that feel a need to redact things issue decisions with the secret parts whited out – even if they go for pages.
In any case, the short notice tells us the outcome: a win on the key aspects of the merits.
Interstingly, publication of the full opinion is stayed until April 15, 2014, pending a ruling by the Court of Appeals on the secrecy. If, as I assume, this is a CIPA case, I think this date means the trial judge wanted to publish the opinion and the government objected. That would give the government the right to an urgent interlocutory appeal on the issue — the only way I can see the Court of Appeals ruling on anything relating to this matter anywhere near that quickly.
- Note that I exclude from the category of shenanigans the denial of access to plaintiff’s counsel of classified info. If the court’s account of the conditions the lawyers demanded, which included discussing the material with their client, was accurate, the court had no choice but to deny the request since the law simply does not allow that. [↩]
Edward Hasbrouck is reporting daily from Ibrahim v. DHS, a fascinating and important case about the no-fly lists. Must-reads for anyone interested in privacy, civil liberties — or intending to attempt air travel.
Shocking day one event: TSA allegedly (and, day two suggests, in fact) prevented a key witness (a US citizen) for the complainant to fly to the trial to testify. At present the evidence is only hearsay; if the witness ever makes it to the trial–sounds like a bad thriller doesn’t it?–then we’ll have sworn testimony.
If I were of a snarky disposition, I’d ask a question about how today’s decision in Koontz v. St. John’s River Water Management District applies to the TSA.
Among other things, today’s opinion by Justice Alito states that the unconstitutional conditions doctrine vindicates the Constitution’s enumerated rights by preventing the government from coercing people into giving them up (in this case by demanding excessive pro-environmental spending or concessions from a wetlands developer), and reiterates that “the government may not deny a benefit to a person because he exercises a constitutional right.” What’s more, the decision states that “A contrary rule would be especially untenable in this case because it would enable the government to evade the limitations of Nollan and Dolan simply by phrasing its demands for property as conditions precedent to permit approval.”
Doesn’t all this resonate with the implicit conversation when you go to the airport and want to fly on a plane? ‘Agree to be irradiated or groped, or give up your right to travel’1 I think I know the answer Justice Alito would give: either there is no such constitutional right not to be searched in the circumstances, so nothing is being given up, or the loss is somehow not important given the state interest. Funny how that doesn’t work for property, though.
Fortunately, I am well medicated these days, so I don’t snark hardly at all.
- For those who deny the existence of the right to travel, how about ‘give up the right to your property/contract interest in your non-refundable ticket’. [↩]
A student I know writes,
My grandmother and I have a unique relationship. We talk about the usual family gossip, but we really get into it when we talk about politics. Why is this unique? Because my grandmother is in her eighties and she lives in Tbilisi, Georgia. Having spent my formative years in the U.S., I make sure to tell her of the liberties that I take for granted that she did not have for the majority of her life in Communist Russia. I tell her that I could support any candidate running for office without fear of retribution from the sitting party (or can I?). Unlike her, I don’t have to fear being audited by the KGB if I support the opposing party (or do I?) (OK maybe I am safe from the KGB). Unlike her, I could become a journalist and try to uncover the truth without fear of being investigated for criminal conspiracy (or can I?). Unlike her, I could rely on my government to tell me the truth about what is going on in the world (or can I?). Unlike her, I am protected by the Constitution to say what I want without being punished (or am I?).
My grandmother does not like being told that she is missing out on these basic liberties by not being in the U.S. (or is she?). Recently, my grandmother visited us in the U.S., and then she visited some family in Israel. She told me about her experience at JFK International Airport. She told me how she was patted down. She told me how she had to stand for what felt like hours (Georgians tend to exaggerate) waiting for the honor to be patted down. She told me how strangers rummaged through her bags. She told me how the TSA threw out her water bottle and how she had to buy another one inside the airport for $3 so she can take her medicine. She told me how rude the TSA agents were to her. She told me how hard it was for her to remove her shoes and then she told me how frustrated she was when she found out she did not have to. I tried to tell her that this is the price we all pay to make sure we have a safe society.
She knew I was going to say that. That’s when she told me about her experience flying to the U.S. and flying from Israel back home. She told me that she was treated with respect and sensitivity. She told me that there were no pat downs, no waiting, no shoe drama, no bag drama, and no “administrative” searches and seizures. I told her it sounds like the security at those airports is lacking. She was not having it. She said there have been no terrorist attacks from those airports and she did research (research-really?) and in fact those airports are safer than their U.S. counterparts. I was stumbling. She was just getting warmed up. Then she went for the jugular. She asked me, oh by the way, whose society is really free?
I realized that in Russia the government knows what you have before you get to the airport so there is no reason for the authorities to scrutinize low-risk passengers. In Israel, law enforcement could track people suspected of terrorism and some form of profiling is prevalent at Ben-Gurion Airport so again there is no need to burden the elderly. However, the U.S. does not use as much profiling nor can the authorities track people’s movements without some kind of judicial oversight. This is the upshot of the discrepancy between how my grandmother was treated at the three airports. My grandmother said she agreed with me and she added that she does not mind being tracked or profiled as long as she can have her dignity and her water while she is traveling.
I asked her if I could write about our exchange. She said sure, but she warned me against using my name. (She said I could use hers, but it’s probably not a good idea because that’s too easy to track. I better listen to her — she has more experience with this stuff.)
Myself, I’d rather undergo some difficulties at the airport rather than live in a surveillance state, but this either goes to show that tastes vary, or that tastes in what counts as freedom are to some extent defined by culture and expectations. Of course, there’s always the possibility that we may end up with both the surveillance and the TSA.
Bruce Scheier on Harms of Post-9/11 Airline Security:
[TSA Administrator] Kip Hawley doesn’t argue with the specifics of my criticisms, but instead provides anecdotes and asks us to trust that airport security—and the Transportation Security Administration (TSA) in particular—knows what it’s doing.
He wants us to trust that a 400-ml bottle of liquid is dangerous, but transferring it to four 100-ml bottles magically makes it safe. He wants us to trust that the butter knives given to first-class passengers are nevertheless too dangerous to be taken through a security checkpoint. He wants us to trust the no-fly list: 21,000 people so dangerous they’re not allowed to fly, yet so innocent they can’t be arrested. He wants us to trust that the deployment of expensive full-body scanners has nothing to do with the fact that the former secretary of homeland security, Michael Chertoff, lobbies for one of the companies that makes them. He wants us to trust that there’s a reason to confiscate a cupcake (Las Vegas), a 3-inch plastic toy gun (London Gatwick), a purse with an embroidered gun on it (Norfolk, VA), a T-shirt with a picture of a gun on it (London Heathrow) and a plastic lightsaber that’s really a flashlight with a long cone on top (Dallas/Fort Worth).
Plus stuff like this,
In 2004, the average extra waiting time due to TSA procedures was 19.5 minutes per person. That’s a total economic loss—in –America—of $10 billion per year, more than the TSA’s entire budget. The increased automobile deaths due to people deciding to drive instead of fly is 500 per year. Both of these numbers are for America only, and by themselves demonstrate that post-9/11 airport security has done more harm than good.
The current TSA measures create an even greater harm: loss of liberty. Airports are effectively rights-free zones.
Yes, read the whole thing.
Sadly, it seems hard to imagine that any President or Congress will have the guts to cut the TSA’s program of anti-security theater, for fear that an airplane will blow up and they’ll get the blame. The dysfunctions of the political system strike again.