Category Archives: Law: Right to Travel

Challenging to the TSA Glow or Grope Policy On Returning to the USA

Matt Kernan was entering the USA, at Cincinnati/Northern Kentucky International Airport. He didn't have a connecting flight — he was heading home. The TSA wanted to subject him, as it apparently does all incoming passengers, to its glow or grope policy.

The problem, from the TSA's point of view, is that the arguably exigent circumstances that may exist for subjecting passengers to an intrusive suspicionless search when they are about to board an airplane — the fear of terrorist attack on a plane — do not exist when people are trying to leave the airport.

Mr. Kerman had four things many passengers do not have:

  • He had time.
  • He had, it appears, the iron self-control needed to remain polite at all times.
  • He had a recording device (voice only).
  • He had a good understanding of his rights.

Read all about it at the misnamed You Don't Need to See His Identification — misnamed, because in practice they do need to see your ID to establish that you are a citizen with a right to reenter the country. (Yes, there are rare cases of people establishing their right to re-enter by witness testimony when they have lost their passports, but that's not something you want to get into.)

To the lawyer's eye there are a few critical points here. The first is that, once you have successfully identified yourself as a US citizen and undergone the ordinary customs process to demonstrate an absence of contraband, you have an absolute legal right to re-enter the US. Court decisions are very clear about this.

The second point is that Mr. Kernan was very careful at all times to say he would comply with any order, but would not accede to invasive searches unless he was told he was being required to submit to it. This is the thing that no one wanted to go on the record as saying, most probably because the TSA's legal position on this is much, much shakier than for passengers attempting to board aircraft. Mr. Kernan also understood that asking a police officer if he was being detained or was free to go is the magic phrase which invokes your Constitutional rights.

I can't emphasize enough that anyone trying to do this better have a lot of time — it took Mr. Kernan 2.5 hours to get through the checkpoint — and especially the iron self-control to remain polite while dealing with officious and occasionally intimidating officialdom. There is a real chance of arrest; if your behavior was perfect it would, I think, be a false arrest, but absent a tape the chances of proving you were not causing a disturbance, or interference with an officer's pursuit of his duty, would not be good enough to make me happy. Mr. Kernan had the good fortune to engage with well-trained and and sensible local police officers and TSA officials who were not in the end vindictive. Your mileage may vary.

And there's the rub: the constitutional right to enter the country freely is made so risky and difficult to exercise as to be rendered almost meaningless.

(Spotted via boingboing's Traveller re-enters USA without passing through a pornoscanner or having his genitals touched.)

Posted in Law: Right to Travel | 5 Comments

The Point of Protest is to be Effective

It’s a rare day when Eugene Volokh totally misses the point of something (it’s not a rare day when I disagree with him, but that’s different). But in endorsing Kent Scheidegger on National Opt-Out Day, I think we’ve got one.

the idea of scheduling a gum-up-the-works protest for the day before Thanksgiving is beyond despicable. National Opt-Out Day is a call for large numbers of people to opt out of the scanners and elect the longer manual search, all on the same day. It is a cruel and heartless act of vandalism that will seriously hurt other passengers, not the people at whom it is supposedly directed….

This is wrong on almost every front. First, there is absolutely nothing “despicable” about urging people to exercise their legal right to opt-out of being x-rayed. This isn’t even a case where people are being asked to engage in Gandhi/King style non-violent protest and, say, peacefully block a road waiting to be arrested, although if the cause were just I’d be more likely to call it “courageous” rather than “despicable”. Repeat, there is nothing wrong with exercising your legal right to choose one intrusive form of suspicionless government search over a possibly dangerous form of suspicionless government irradiation. Do you trust the TSA people at your airport to properly calibrate the backscatter x-ray machines or the so-called millimeter wave machines? I don’t: Even hospitals get the x-ray dosages wrong with alarming frequency, and I’m betting hospital machines are more closely monitored for health risks than the TSA‘s high-volume machines are.

No, this is a basic Alinsky-style tactic in which people are urged to do that which they are allowed to do, en mass, in order to demonstrate their distaste regarding what they are forced to do (choose between being irradiated or being searched over-intrusively) or not allowed to do (travel freely). There is little point in such protest at six in the morning on a light travel day — the tree may fall in the forest, but no one will notice. The whole point of the exercise is to create pressure for change while acting entirely within the law. Pressure for change is increased if bystanders are co-opted into complaining about the resultant delays or even persuaded to join in the protest.

My general view is that when my fellow citizens are motivated to participate in the political process by any form of organizing around legal action — even stuff I disagree with — this is a good thing for the system. (The hardest case is when the motivation is lies. But then the real problem is the lies and the liars, not the well-intentioned protesters.) Most of the time I feel the same way about non-violent protest too, even if it consists of civil disobedience. Where I draw the line is violence and threats of violence. Of course, if I disagree with protesters, I reserve the right to attempt to point out the error of their ways, but that goes to substance, not tactics.

Reading complaints about the upcoming protest one is left with the strong suspicion that the “despicable” aspect of this protest from the point of view of those who prefer their fellow citizens just shut up and take it is that it is a protest, or rather that it is a protest that just might work. Meanwhile, as the protesters were considerate enough to warn of their plans, plan to be at the airport early.

PS. I’m traveling on Wednesday, so I and my family will be among those inconvenienced at MIA. I’ll be among those opting out if not run through a metal detector, although I would have done so regardless of the existence of the opt-out movement because I’ve had more than a couple of lifetime’s supply of x-rays this year. (See TSA Glow or Grope Policy.)

Posted in Law: Right to Travel | 13 Comments

TSA Glow or Grope Policy

Bruce Schneier has lilnks to everything you could want on the TSA Backscatter X-ray Backlash (now with extra groping!).

I'm scheduled to fly on Nov. 24, which has now been declared to be a day of protest against all this. I had already planned to decline any scanning as I've had all the x-rays I need already this year, and then some. I suppose they'll think I'm part of the protest as indeed, to be fair, I might have been anyway. I'm flying late in the day, lines will be long — it's the busiest air traffic day of the year — and TSA professionalism will be stretched, I imagine, to the breaking point. What fun that will be.

Bonus link: Keeping the skies safe from nail clippers (armed returnees from Afghanistan encounter TSA in Indiana).

Posted in Law: Right to Travel | 3 Comments

Privacy is a Key Part of Liberty

Lest you think there's nothing at stake when people decide how much leeway to give the government to search, question and monitor, here's Digby, Mission Creeps — The New Surveillance State, with pointers to two articles which when read together give you a good idea of the rather discouraging state of play: Glenn Greenwald, The Obama administration's war on privacy and a little case study, Daniel Rubin, An infuriating search at Philadelphia International Airport.

Posted in Law: Right to Travel | 1 Comment

Liberty Gets Used Up Only When Not in Use

For some interesting stuff about a US Citizen's almost-never-exercised right to remain silent when re-entering the United States, and the punitive responses it incites from our public servants, see Paul Karl Lukacs, I Am Detained By The Feds For Not Answering Questions and the sequels, 10 Brief Responses To 700 Comments About Refusing To Answer Questions At Passport Control and More Law: Refusing To Answer Questions At U.S. Passport Control.

Here's how it begins:

I was detained last night by federal authorities at San Francisco International Airport for refusing to answer questions about why I had travelled outside the United States.

The end result is that, after waiting for about half an hour and refusing to answer further questions, I was released — because U.S. citizens who have produced proof of citizenship and a written customs declaration are not obligated to answer questions.

* * *

“Why were you in China?” asked the passport control officer, a woman with the appearance and disposition of a prison matron.

“None of your business,” I said.

Her eyes widened in disbelief.

Lawyers and others may want to read Split Circuits, N.D. Georgia Notes Split Re: Whether Use of Pre-Arrest Silence in Government’s Case-in-Chief Violates Fifth Amendment

(Found via Pogo Was Right, Pointer: More Law: Refusing To Answer Questions At U.S. Passport Control)

Posted in Law: Right to Travel | 4 Comments

Border Searches as Harassment Threatened

It's stuff like this that gets me mad at the Obama administration:

According to the NYT in Gates Cites Peril in Leak of Afghan War Logs by WikiLeaks, US immigration officials (along with the Army’s criminal investigation division) stopped US citizen Jacob Appelbaum to question him about his involvement (which he denies) in the Wikileaks somewhat Pentagon-papers-like release of US classified documents detailing how the war in Afghanistan is going less well than advertised.

So far, well that's routine. If the cops want to interview a suspect or even a possible witness to a crime and find him at the border, as I understand it (I'm not an expert here, I'm repeating what I've been told and invite corrections) they can detain him for questioning. And why not? If law enforcement have adequate grounds to arrest or detain someone inside the US, why should they have to play catch and release with criminal suspects (or even witnesses) at the border? Similarly, if the Army is involved in the investigation of a leak of their documents, I can't see a principled reason why they can't participate in an arrest or interrogation. But that's not what's at issue here:

Mr. Appelbaum said the agents at Newark Airport refused him access to a lawyer and threatened to detain him for similar questioning whenever he re-entered the country after traveling abroad, which he said he did twice a month for a day job as an online software developer.

“They questioned my ability to re-enter the U.S. even though I'm a U.S. citizen,” he said in a telephone interview from Las Vegas. “It's very troubling to think that every time I cross the border, I'd get this treatment.”

Two problems here: First, not giving a US citizen access to a lawyer when he's being questioned about a crime he's apparently suspected of knowing about or participating in. Second, threatening to misuse the US's border control powers to harass a citizen's lawful movements across the border not because he's suspected of carrying any contraband, but because he exercises his Fifth Amendment right.

Immigration law is quicksand for civil rights, so it's conceivable to me (recall that I'm not an immigration lawyer) that the no-lawyer rule is supported by some law or precedent, although I still think it's not in keeping with our traditions or aspirations for the rule of law. (Mr. Appelbaum had the fortitude to refuse to talk without a lawyer for the three hours he was detained.) But the idea that it might be proper to threaten to harass someone routinely at the border, much less carry out such a threat, strikes me as not only clearly illegal but very ugly. I think this threat from US immigration or customs officials would be illegal in any context when directed at a US citizen, but the case is even more clear when in response to a valid assertion of a Fifth Amendment right not to speak when interrogated.

I doubt Mr. Appelbaum wants to sue about this, but it seems to me that the particularity of the threat against him would give him standing to seek declaratory and perhaps injunction relief despite the bar on general suits of this nature set up in Los Angeles v. Lyons, 461 U.S. 95 (1983).

Views from those knowledgeable about such things welcomed.

Posted in Law: Right to Travel | 4 Comments

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.

Posted in Law: Right to Travel | 1 Comment