Tuesday, 29 August 2006

USA denies its citizens their right of return

The government is preventing a native-born citizen of this country from returning home to the USA from overseas:

U.S. Blocks Men’s Return to California From Pakistan (New York Times, 29 August 2006)

Jaber Ismail, who was born in the United States, was questioned by the F.B.I. at the American Embassy in Islamabad, but his father, a naturalized United States citizen from Pakistan, declined to participate, Ms. Mass [their lawyer in the USA] said. … Jaber Ismail has refused further interrogation without a lawyer and has declined to take a polygraph test; Ms. Mass said the men were told these conditions had to be met before the authorities would consider letting them back into the United States.

She said the men had not been involved in terrorist activities; Jaber Ismail, she said, had gone to Pakistan in part for religious study.

“If the government had evidence instead of innuendo,” Ms. Mass said, “then they would be charged with a crime instead of being held hostage in a foreign land.”

It could have been me.

Like Jaber Ismail, I’m a native-born citizen of the USA and a California resident. Like Jaber Ismail, one of my parents was born in Pakistan and I’m eligible for Pakistani citizenship.

I’m not religious, but how many USA citizens make (mostly Christian or Jewish) religious pilgimmages, or trips for religious study, to the Middle East?

Like Jaber Ismail, my own citizenship and passport are exclusively those of the USA, according to the Lodi News in his hometown of Lodi, California:

Neither Muhammad nor Jaber Ismail holds dual Pakistani citizenship, Mass said.

McGregor Scott, the U.S. attorney for California’s eastern district [in Sacramento], confirmed Friday that the men were on the no-fly list and were being kept out of the country until they agreed to talk to federal authorities.

“We haven’t heard about this happening — U.S. citizens being refused the right to return from abroad without any charges or any basis,” said Mass, a lawyer for the American Civil Liberties Union.

“They want to come home and have an absolute right to come home,” said Mass…. “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.”

Is that legal? No.

As it happens, I’ve been researching exactly this question in drafting comments to be filed on behalf of The Identity Project on the pending proposal by the USA Department of Homeland Security (DHS) to formalize the power of the DHS to prohibit anyone (including citizens of the USA) from travelling 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.

Those comments haven’t been filed quite yet. But since the issues I spoke about as hypothetical are now all too real — citizens of the USA denied their right of return — I’m posting excerpts below.

(The deadline for comments on the DHS “Advanced passenger Information System” (APIS) proposal has been extended until 12 October 2006, although I expect that the Identity Project comments will be filed substantially sooner than that. If you are with an organization that might be interested in co-signing them once they are complete, please let me or IDP staff attorney James Harrison know ASAP.)

Some discussion is beginning about the Constitutional issues this case raises, but thus far it has overlooked two things, as discussed in the excerpts below from the Identity Project draft comments on the DHS proposal:

  • First, the right to travel is not merely a prerequisite to the exercise of other rights, but a right directly protected under the assembly clause of the First Amendment.

  • Second, the right to freedom of movement is not just (or primarily) a Constitutional right, but is much more strongly and explicitly protected under the international law of human rights including treaties signed and ratified by the USA.

Excerpts from more detailed analysis on these points (the “hypothetical” that has now become real in the case of Jaber Ismail is in bold):

In the guise of a Notice of Proposed Rulemaking (NPRM) [n.b. the original deadline for comments has been extended until 12 October 2006] alleged to propose a change only in the required timing of transmission of information already required to be provided to the Bureau of Customs and Border Protection (CBP), the CBP has actually proposed a fundamental regulatory change with far-reaching (literally and figuratively) legal, policy, and logistical implications: The NPRM would replace a requirement for ex post facto notice to the CBP of information about who is on the vessel (ship or plane) with an unconstitutional system of prior restraint of international travel, entirely unauthorized by statute and inconsistent with the U.S. obligations embodied in the International Covenant on Civil and Political Rights.

Orders to common carriers under the NPRM not to transport specific persons would not be based on restraining orders (injunctions) issued by competent judicial authorities. Instead, they would be based on an administrative “clearance” procedure subject to none of the procedural or substantive due process required for orders prohibiting or restricting the exercise of protected First Amendment rights. From the authority of law enforcement officers and agencies to enforce certain types of orders, once lawfully issued by competent judicial authorities, the NPRM would usurp for the CBP the authority to issue those orders on its own. It’s as though the FBI were to construe its authority to maintain in the NCIC a list of persons for whose arrest warrants have been issued by competent judicial authorities, and execute those warrants, as authority for the FBI to issue and execute its own warrantless administrative arrest orders.

The NPRM would create a clearly invalid administrative presumption, reversing the presumptions of innocence and of entitlement to the exercise of First Amendment rights, that all those persons not affirmatively “cleared” in advance by the CBP — according to decision-making procedures and criteria specified nowhere in the NPRM — are barred from travel.

The proposed rules would burden equally, and infringe the rights to varying degrees of, U.S. citizens, resident aliens, immigrants, nonimmigrant visitors, and even those with no intention to enter the U.S. who merely wish to travel on flights that will, or might, transit through U.S. airspace. Reciprocal adoption of similar rules by other countries would further burden travel worldwide by U.S. citizens and residents, including their international travel and their travel within the USA. Since both the current rules and the proposed rules are incompatible with current European Union privacy and data protection laws, their retention or adoption would make it impossible for airlines to operate direct flights between the USA and the E.U. without violating the laws of one or both jurisdictions, and would thus require an enormously disruptive and costly cessation of such flights.

The Regulatory Analysis published subsequent to the NPRM makes clear that the NPRM is based on clearly erroneous assumptions, fails to consider important implications and incidental and consequential costs, and grossly underestimates — by at least an order of magnitude — the burden of at least tens of billions of U.S. dollars in costs that the proposed rules would impose on the travel industry, travelers, and travelers’ employers, families, and associates. Both the NPRM and the Regulatory Assessment misstate the impact and implications of the proposed rules, and fail to include specific assessments required by the Privacy Act and the Regulatory Flexibility Act….


A. Travel by international air and sea vessels is, in most cases, an act of assembly protected by the First Amendment to the U.S. Constitution.

The assembly clause of the First Amendment protects “the right of the people peaceably to assemble”. “To assemble” means not merely or primarily to be together in an assembly. “To assemble” is to gather or come together, that is, to move into an assembly. Movement of people — in other words, travel — is an essential element of the act of assembly. “To travel” is, in most cases, “to assemble”, and as such is an act directly protected by the First Amendment.

The U.S. government has reiterated in its most recent report to the United Nations Human Rights Committee that, “As reported in the Initial Report, in the United States, the right to travel — both domestically and internationally — is constitutionally protected.” Second and Third Periodic Reports of the U.S. Concerning the International Covenant on Civil and Political Rights, Paragraph 203, 28 November 2005, CCPR/C/USA/3, referring to Initial Report by the U.S. Concerning Its Compliance with the International Covenant on Civil and Political Rights, July 1994, CCPR/C/81/Add.4 and HRI/CORE/1/Add.49.

The right to assemble in one’s own home or premises, or in a public building, would be empty if the government could bar the door to prevent people from walking in. The right to assemble in a public commons would be empty if the government could encircle the area of the planned assembly with barricades to prevent entry, or create a checkpoint to prevent access by travel along a public right of way. In the same way, and for the same reasons, the right to assemble internationally would be meaningless if the government could prevent people from traveling internationally by air or sea.

The right to travel by air or sea vessel is, quite obviously, essential to the ability to assemble internationally. Unless the CBP wishes to suggest, “Let them swim”, there is no available alternative way for people in the U.S. to assemble with people from most other countries, or vice versa.

B. The proposed rules would prohibit air and sea common carriers from transporting any person without the express prior permission of the CBP, creating a regime of prior restraint and presumptive denial of the right to travel and to assemble.

The title and summary in the NPRM describe the proposed changes to regulations solely in terms of changes in the requirements for common carriers to transmit passenger and crew manifest information to the CBP; that is, as mere modifications of the current requirements that notice be given to the CBP of who is on the vessel. (The implications for airlines, travelers, and civil liberties of these changes in notice and information collection requirements are discussed in a later section of these comments.)

But the essence of the NPRM is the new language proposed for 49 CFR § 122.49a (b)(1):
“A carrier must not board any passenger subject to a ‘not-cleared’ instruction, or any other passenger, or their baggage, unless cleared by CBP.” This identical language is repeated in each of the three alternative sub-sections of the proposed new 49 CFR § 122.49a (b)(1).

This is not, and cannot under any plausible interpretation be represented as, a notice requirement. This is a binding prohibitory regime of prior restraint on all available means of travel and assembly.

To the extent that, as is typically the case, no alternative means to travel or to assemble exists, this section is binding on the would-be traveler as well as the carrier.

It is important to note that the phrase, “any other passenger” in the cited portion of the proposed rule refers specifically to a would-be traveler about whom neither a “cleared” nor a “not cleared” message — nor, perhaps, any message at all — has been received from the CBP. In other words, the proposed rule forbidding the transportation by common carriers (who are required by law to transport all would-be passengers complying with the conditions in their tariff) and thus the travel and assembly, of “any other person” is, by definition, warrantless, suspicionless, and not based on probable cause or any particularized information concerning the persons being deprived of their right to travel and assemble.

C. The suspicionless warrantless presumptive prior restraint on international travel and assembly in the proposed rules would be unconstitutional.

Prior restraints on the exercise of rights protected by the First Amendment, such as the right of the people to assemble at issue in this rulemaking, are subject to strict scrutiny, and to Constitutional standards both of substantive and procedural due process….

None of these standards are satisfied by the proposed regulations. Nor could they possibly be, since by definition suspicionless unwarranted non-particularized prior restraint on activity protected by the First Amendment has been found to be unconstitutional.

Even if the default ban on transportation, travel, and assembly by non-suspects were removed from the proposed regulations, the proposed rule would still be unconstitutional: it fails to specify anything about the substantive or procedural criteria for the issuance of such prohibitory orders, much less to provide the guarantees of due process that would Constitutionally be required for the valid issuance and enforcement of such orders.

D. The restrictions on travel and assembly in the proposed rules would unconstitutionally burden the exercise of other rights protected by the First Amendment.

In addition to its effect on activities directly protected by the assembly clause of the First Amendment, the suspicionless, unwarranted, presumptive prior restraint on travel and assembly in the proposed regulations would unconstitutionally interfere with the ability of U.S. persons to exercise other rights protected by the First Amendment.

In many circumstances, travel is essential to the exercise of other First Amendment rights. For example, it’s often necessary for persons outside the U.S. — including U.S. citizens — to travel to the U.S. in order to petition U.S. legislative, judicial, or executive authorities for redress of their grievances.

Travel is essential to many modes of expression and expressive conduct that depend on personal presence, and to the in-person reporting of a free press. Without the ability to travel to, and report from, places around the world where news is being made, the press in the USA would depend entirely on the news of the world reported by those “vetted” and approved to travel by the CBP. And the same would be true for U.S. citizens abroad wishing to report to the world press and public about events in the USA.

Even when freedom of travel is not per se essential to freedom of speech, of the press, or to petition for redress of grievances, restrictions on travel — including international travel — can greatly impair the ability of U.S. persons to exercise those rights.

Finally, travel is a significant component of many expressive activities, suo that regulations which burden movement on public rights-of-way or by common carrier also burden that expressive conduct. (On the inextricability of personal movement, assembly, and expressive conduct, see e.g. Rebecca Solnit, The Right of the People Peaceably to Assemble in Unusual Clothing: Notes on the Streets of San Francisco, Harvard Design Magazine, April 1998.)…

The proposed regulations fail to satisfy these tests, and are therefore unconstitutional.

E. The proposed rules would exert an unconstitutional chilling effect on the exercise of rights protected by the First Amendment.

Under the proposed regulations, anyone traveling overseas, to or from the U.S., for any length of time and for any reason, risks not being “cleared” by the CBP to return by air or sea, and being stranded for life on the other side of an ocean from their family, friends, and home — unless they can walk on water, or swim home across the ocean.

There is no requirement in the proposed regulations for the CBP to respond at all, or to respond within any particular time, to a request from a common carrier for “clearance” of a manifest, or of any particular name on that manifest. There is no requirement for the CBP to tell the carrier, or the would-be passenger or crew member, why they have not been “cleared”, and no defined redress or “clearance” procedure (much less one which would or could pass Constitutional muster). In the absence of any response, or in the event of a “not cleared” response, all carriers are prohibited from boarding the would-be passenger, and that would-be passenger is effectively prevented from traveling — indefinitely, unpredictably, without warrant or suspicion or probable cause, and perhaps permanently.

Since there is no requirement or procedure by which a would-be traveler can determine in advance whether they will ever be “cleared” to return, or how long it might take for them to be “cleared”, the risk of being stranded for life would be inherent in any overseas journey to or from the USA.

That risk would exert a dramatic chilling effect on the exercise of the First Amendment rights of travel and assembly, as well as of other First Amendment rights, when they entail overseas travel….


Travel is a fundamental and internationally recognized human right, and a vital prerequisite for the exercise of other fundamental rights. “Liberty of movement is an indispensable condition for the free development of a person.” United Nations Human Rights Committee, General Comment No. 27 on Freedom of Movement in Article 12, issued under Article 40(4) of the International Covenant on Civil and Political Rights, CCPR/C/21/Rev.1/Add.9 General Comment No.27, 02/11/1999.

Under Article VI, Section 2 of the U.S. Constitution, “treaties made, or which shall be, made, under the authority of the United States, shall be the supreme law of the land.”

Article 12, Section 4 of the International Covenant on Civil and Political Rights (ICCPR), ratified by the U.S. Senate on April 2, 1992 (138 Congressional Record S4782), provides that, “No one shall be arbitrarily deprived of the right to enter his own country.”

The meaning of this section is interpreted in Paragraph 21 of U.N. Human Rights Committee, General Comment No. 27 on Freedom of Movement in Article 12 :

“In no case may a person be arbitrarily deprived of the right to enter his or her own country. The reference to the concept of arbitrariness in this context is intended to emphasize that it applies to all State action, legislative, administrative and judicial; it guarantees that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances. The Committee considers that there are few, if any, circumstances in which deprivation of the right to enter one’s own country could be reasonable.”

As applied to U.S. citizens wishing to return home from overseas, the default prohibition on travel by commercial air or sea vessel in the proposed regulations, in the absence of any defined substantive or procedure criteria or safeguards and, by definition, the absence of any warrant, probable cause, suspicion, or individualized basis, constitutes on its face an arbitrary deprivation of the right of return embodied in Article 12, Section 4 of the ICCPR.

As applied to anyone wishing to leave the USA, the proposed rules are inconsistent with Sections 2 and 3 of Article 12 of the ICCPR, which provide:

“2. Everyone shall be free to leave any country, including his own.”

“3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.”

To be “necessary”, as is required by Section 3 of Article 12, requires more than that a restriction on human rights be related to, or actually further, one of the enumerated purposes. “Necessity” requires a showing that no less restrictive alternative could adequately serve the particular enumerated purpose.

This interpretation of “necessity” is supported by the U.N. Human Rights Committee, General Comment No. 27 on Freedom of Movement in Article 12 , which provides in Paragraph 14:

Article 12, paragraph 3, clearly indicates that it is not sufficient that the restrictions serve the permissible purposes; they must also be necessary to protect them. Restrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected.

Paragraph 17 of the U.N. Human Rights Committee, General Comment No. 27 on Freedom of Movement suggests that strict scrutiny is appropriate for “rules and practice [which] include, inter alia, … the need for … exact description of the travel route”, as in the proposed rules.

Since there is no such showing of necessity in the NPRM, and in fact the CBP has not even attempted to make any such showing or asserted such a claim of necessity, the proposed rules are flatly inconsistent with the U.S. obligations embodied in this article of the ICCPR, and must be withdrawn.

In addition, for the same reasons that they violate the assembly clause of the First Amendment to the U.S. Constitution, as discussed above, the proposed rules are inconsistent with Article 21 of the ICCPR, which provides:

“The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.”

The same analysis of the CBP’s failure to make or support a showing of necessity applies with respect to this Article 21 as with respect to Sections 2 and 3 of Article 12, as discussed above. The proposed rules thus are inconsistent with Article 21 of the ICCPR as well, and must be withdrawn.

The lack of a deadline for the CBP to decide on a request for “clearance” (permission to travel) or any explicitly defined substantive or procedural criteria in the proposed rules for the granting or denial by the CBP of “clearance” is also inconsistent with the ICCPR, as interpreted in Paragraphs 15-16 of the U.N. Human Rights Committee, General Comment No. 27 on Freedom of Movement :

“The principle of proportionality has to be respected not only in the law that frames the restrictions, but also by the administrative and judicial authorities in applying the law. States should ensure that any proceedings relating to the exercise or restriction of these rights are expeditious and that reasons for the application of restrictive measures are provided… .”

“The application of restrictions in any individual case must be based on clear legal grounds and meet the test of necessity and the requirements of proportionality.”

Finally, the ICCPR embodies reporting obligations, as interpreted by Paragraph 10 of the U.N. Human Rights Committee, General Comment No. 27 on Freedom of Movement :

The practice of States often shows that legal rules and administrative measures adversely affect the right to leave, in particular, a person’s own country. It is therefore of the utmost importance that States parties report on all legal and practical restrictions on the right to leave which they apply both to nationals and to foreigners, in order to enable the Committee to assess the conformity of these rules and practices with article 12, paragraph 3. States parties should also include information in their reports on measures that impose sanctions on international carriers which bring to their territory persons without required documents, where those measures affect the right to leave another country.

Since the CBP “clearance” message to the carrier required by the proposed rules would be a “document” within the meaning of this paragraph and of the ICCPR, failure to include the rules proposed in this NPRM in the reports by the U.S. pursuant to Article 40 of the ICCPR would be inconsistent with the U.S. obligations embodied in the ICCPR.

[Addendum, 30 August 2006: Several commenters have asked whether it would be possible — albeit slow, expensive, and inconvenient — for Jaber Ismail, or others similarly situated, to fly to Mexico or Canada, and then travel overland from Mexico or Canada into the USA. A UPI story about the case says not: “Under the so-called Security and Prosperity Partnership for North America, a tri-lateral policy process, the governments of the United States, Mexico and Canada pledged last year to integrate their terrorism and aviation security watch-lists. ‘It’s not even clear that they would be allowed to fly to Canada’ so that they could present themselves at the land border, said Mass.”]

[Further addendum, 30 August 2006: According to a Reuters article that appears to be the first by a journalist who has actually spoken with Jaber Ismail (datelined Los Angeles, so presumably by telephone), he and his father were refused passage to the USA in April 2006, and have been couching-surfing with relatives in Rwalpindi, Pakistan, ever since. “I said, ‘I am a U.S. citizen. I was born there.’ I showed them my birth certificate, my school ID. They wouldn’t listen…. I was at a mosque. I was memorizing the Koran because it was important to my mom,” Ismail said. “I want to go home and finish high school and get a good job.”]

[Further addendum, 4 October 2006: Jaber and Muhammad Ismail were finally allowed to come home on 1 October, after more than five months of de facto exile from their country and separation from the rest of their family by the USA government. Their names were reportedly removed from the no-fly list , but there’s no guarantee it won’t happen again — to them, to you, or to me. See the press release from the ACLU and the statements from Jaber Ismail and Muhammad Ismail for more details.]

Link | Posted by Edward on Tuesday, 29 August 2006, 06:46 ( 6:46 AM)

Whilst I cannot cite the page and verse, I do recall that a loophole does exist in immigration rules. If a US citizen has been an expat for more than three years without returning to the US, the US government reserves the right to process that individual as they would a foreign national.

All that I have read on this story suggests that the pair have been outside the country for four years without returning. Therefore, the US can invoke that clause and, as they would with other foreign nationals, refuse entry.


Posted by: Sukala, 30 August 2006, 09:49 ( 9:49 AM)

In reply to Sukala's comment: So far as I can tell, there is no such provision of the law in the USA. Even if the government were to adopt such a rule, it could pertain only to how someone is "processed" (whether or how carefully they were searched, etc.) on arrival, and not to whether they were, after that processing, allowed to enter the country. The right of return of citizens is absolute. Jaber Ismail has not yet arrived at a port of entry to the USA, and has not yet begun entry processing. He is not merely being prevented from entering the USA, but is also being prevented from travelling to the USA.

Posted by: Edward Hasbrouck, 30 August 2006, 14:54 ( 2:54 PM)

It is frightening what is happening now a days with all of the breaches of civil rights of the people. Today it is one thing but very quickly it will turn into something much more nasty. Our current leaders have a certain amount of integrity in spite of the the many ways they want to curb our civil liberties but what happens if a future leader isnt as honest and trustworthy. Will the USA become like many of the Middle Eastern countries we have recently freed from tyrants. What kind of a USA are we creating for our kids.

Posted by: Tom Martin, 26 February 2010, 07:47 ( 7:47 AM)

"Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!"

Posted by: larry, 8 September 2010, 12:27 (12:27 PM)
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