Category Archives: Law: Right to Travel

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.

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?

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?

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…

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.