Tuesday, 9 November 2004

First public peek at the work of the TSA "Ombudsman"

At the first court hearing last Thursday on the legality of so-called “No-Fly” and “Selectee” watch lists provided (secretly) to airlines by the USA Transportation Security Administration (TSA), and (secret) orders to airlines as to how they are to use these lists as the basis of disparate treatment or denial of transportation by common carriers, the USA government defendants in the class-action lawsuit continued to oppose any requirement that any aspect of their airline and transportation “security” measures (even those that appear more likely be effective for surveillance than safety) be subject to public scrutiny or judicial review.

The government defendant’s Motion to Dismiss the lawsuit and Memorandum in Support of Motion to Dismiss basically repeat the arguments for secrecy made previously in Gilmore vs. Ashcroft and Chowdhury vs. Northwest Airlines . And the Declaration of Lee S. Longmire of the TSA, submitted as a the government’s sole basis for its factual claims about the watch lists, gives few actual facts.

But in what plaintiffs’ counsel, ACLU of Washington state staff attorney Aaron Caplan, told me was “unusual” in consideration of a motion to dismiss, Judge Thomas S. Zilly ordered the government before the hearing to provide the judge, “in camera and ex parte” (i.e. without disclosing them publicly or even to the plaintiffs or their lawyers) with:

  • (a) A copy of the applicable Security Directives;
  • (b) A copy of the ombudsman processes available for expunging innocent passengers? names from the No Fly List;
  • (c) A copy of the procedures used for processing Passenger Identity Verification Forms.

In response, the TSA’s lawyers (led by Joseph W. LoBue, a Department of Justice staff lawyer who handled the oral argument for the defendants as he had done in Gilmore v. Ashcroft ) gave the judge copies of six TSA Security Directives to the airlines as well as 2 TSA internal policy memos . Perhaps more importantly, they made public the forms and form letters used by the TSA ombudsman’s office in correspondence with people who complain to the TSA of being selected for secondary screening, or denied transportation, as a result (they suspect, although they never know for sure, since the lists and orders are kept secret from them and issued without any adverserial, evidentiary, or judicial hearing) of the TSA’s watch lists and orders to the airlines.

The TSA ombudsman’s office forms and form letters don’t really say what the TSA actually does with complaints, or who makes the decisions, although they do make clear that the burden is on complainants to prove that they aren’t or shouldn’t be on the watch lists (without knowing if they are, or why). But the TSA’s lawyers relied on these documents — made public only only after a Federal lawsuit — as ostensibly providing adequate (discretionary, internal, secret, non-judicial) “recourse” for people complaining of discriminatory warrantless searches or denial of transportation by common carrier.

ACLU attorney Caplan said Judge Zilly gave no indication during the hearing as to what might have been in the in camera documents. And there was clearly confusion on the part of all parties and the judge as to the distinctions between the “no-fly” and “selectee” lists, and between people who are on one or the other of those lists, and people whose names are similar to those of people on the lists. Since all of the named plaintiffs have eventually been allowed to fly, it appears that none of them are on the no-fly list. It remains uncertain whether any of the 7 named plaintiffs are actually on the selectee list (3 have been told they are not, but the others don’t know) or whether their names are similar to names on the no-fly or to names on the selectee list.

In any event, Caplan says Judge Zilly indicated he plans to rule on the motion to dismiss quite soon, perhaps in just a few weeks.

[Addendum, 14 March 2006: The court exhibits linked above provide much more information about the process (at least as of 2004) than the TSA provides on their Web site. But if you are just looking for the “Personal Information Verification Form” to submit to the TSA, you should use the current version from the TSA Web site instead of the 2004 version included in the court filings.]

Link | Posted by Edward on Tuesday, 9 November 2004, 07:13 ( 7:13 AM)
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