Wednesday, 3 November 2004

Hearing in Seattle on challenge to no-fly list

For the first time ever, lawyers for the USA Transportation Security Administration (TSA) will appear in court tomorrow in Seattle to try to defend their (still largely secret) procedures for the compilation and use by the TSA, law enforcement agencies, and airlines of “No-Fly” and “selectee” watch lists.

In the class-action challenge to the no-fly and selectee lists, Green v. TSA (No. 04-0763, W.D. Wash., filed 6 April 2004), Judge Thomas S. Zilly of the U.S. District Court for the Western District of Washington (700 Stewart St., Seattle, WA) will hear arguments beginning at 9 a.m. on Thursday, 4 November 2004 from a battery of Justice department lawyers (representing the TSA and the Department of Homeland Security) and lawyers from the ACLU representing people who have been delayed, detained (with their identification documents confiscated, so they couldn’t leave), interrogated by police, and/or subjected to more intrusive searches because their names matched or resembled (they weren’t told which) names on one or another of these lists (they weren’t told which list), sometimes each time they tried to travel by air, and in some cases even after establishing their identity to the same airlines or law enforcement agencies on prior trips.

The hearing is likely to focus on jurisdictional and procedural issues: The TSA and DHS have moved to dismiss the case on the grounds that it should have been filed first in the Court of Appeals rather than the District Court (the same argument that was made in response to the challenge to airline and government ID requirements in Gilmore v. Ashcroft which is now on appeal to the same Circuit Court that would eventually hear any appeal of the watch list suit), and on the grounds that the plaintiffs’ rights haven’t been violated because, “they have no right to be free of airport searches” [emphasis in original].

Not, “a lesser right”, or “a limited right”, but “no right”, suggesting that the most intrusive search imaginable (which I suppose would mean body cavity searches and confinement in a “dry cell” for long enough for the complete contents of one’s stomach and intestines to pass through, be excreted, and be examined by police for swallowed contraband) would be permissable as a routine condition of travel by airline. If they really believe this, our rights are really in danger (not that this should, by this time, come as any surprise).

Nonetheless, almost anything the government’s lawyers could say is likely to reveal more details about the secret watch lists, just as did the District Court hearing in Gilmore v. Ashcroft that I attended in San Francisco on 17 January 2003.

Meanwhile, a large volume of documents about the TSA watch lists has been released in response to the order of another U.S. District Court in San Francisco in the ACLU’s separate watch list lawsuit, Gordon v. FBI under the Freedom of Information Act (FOIA). And investigative journalist Ryan Singel has begun posting documents releases in response to his FOIA requests concerning the use of jetBlue Airways reservations for airline passenger identification, profiling, “screening”, and other experiments.

I got word of the hearing in Seattle only this afternoon, too late to attend. If any of my readers makes it to the hearing, please let me know what happens. I also hope to be able to post links tomorrow to more of the pleadings filed in the case.

[Update, 9 November 2004: Report on on what happened at the hearing with links to more of the pleadings and documents released by the TSA.]

Link | Posted by Edward on Wednesday, 3 November 2004, 14:58 ( 2:58 PM)
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