• Can the US Seize Would-Be Jihadis’ Passports?

    October 24, 2014 // 2 Comments »

    The person who shot up the Canadian Parliament had had his passport taken away by the Canadian government, ostensibly to prevent him from traveling to Syria to join ISIS

    Can the U.S. government seize the passports of American citizens who it believes may travel abroad to join ISIS or other terror groups? Yep. The process is almost no-cost to the government, extra-judicial, can be made secret and requires a lengthy court process to even try to contest. No passport, no international travel, the ultimate no-fly tool against would-be jihadis. So why hasn’t this process been used more often?

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    Leaving aside the not-insubstantial questions about their validity, the warnings are ominous.

    With some Americans seeking to join ISIS, there are fears that on their return they may commit terror in the U.S. Unlike foreign citizens, these radicalized Americans would sail through immigration checks and be able to easily disappear into a familiar society. The U.S. is seeking to tackle the problem at the supply end, preventing Americans from departing to join ISIS in the first place, as well as from the other side, blocking citizens from returning freely to the United States.

    The arrest at O’Hare airport of Mohamed Khan, a 19-year-old U.S. citizen, is one example. Authorities claim the young man headed to the Middle East to join ISIS, and, citing a left-behind note explaining his choice, waited at the airport to arrest Khan on charges of attempting to provide material support for a terrorist organization. The operation involved significant law enforcement resources to stop one teenager based largely on suspicion.

    Another Tool in the Box

    The United States can simply seize passports from American citizens if “The Secretary of State determines that the applicant’s activities abroad are causing or are likely to cause serious damage to the national security or the foreign policy of the United States.”

    The law allows this prospectively, the “or are likely to cause” part of the law, meaning the person needn’t have done anything. The government just needs to think they might.

    A Judicial Watch Freedom of Information Act request revealed that prior to Obama ordering him and his 16-year-old son to be killed by a drone in 2011, then-Secretary of State Hillary Clinton secretly revoked the passport of Anwar al-Awlaki, alleged al Qaeda propagandist and U.S. citizen. The two would not have been able to travel to the United States without handing themselves over to law enforcement. Indeed, a letter to that effect was allegedly sent to some address in Yemen inviting al-Awlaki to visit the American Embassy to discuss the details.

    Al-Awlaki isn’t the only person in Yemen to have his U.S. passport seized.

    According to information obtained through a U.S. government whistleblower involved directly with U.S.-Yemeni affairs, the American embassy in Sanaa, Yemen seized over one hundred U.S. passports from Yemeni-Americans (some place the number at 500 passports) between 2011 and 2013. Only after several legal battles did the State Department curtail its actions. Though State publicly claims the seizures were an anti-fraud measure, many in the Yemeni community saw them as a pilot program.

    A similar case involved the seizure of a Moroccan-American’s passport in Kuwait.

    The actions at the American embassy in Yemen may fit into a larger pattern. For example, at the same time in 2011 the U.S. was ramping up its actions against Yemeni-Americans, Australia appeared to be doing much the same thing. “Withholding passports is an important means of preventing Australians from traveling overseas to train, support or participate in terrorism,” an Australian government spokesperson said. “It may also be used to help prevent an Australian already overseas from participating in activities that are prejudicial to the security of Australia or another country.”

    How are Passport Seizures Legal?

    Restrictions on travel suffered under the British were part of the list of “injuries and usurpations” in the Declaration of Independence. So don’t Americans have a right to travel?

    Nope. The precedent was set by infamous ex-CIA officer Philip Agee, who in the 1970′s exposed CIA officers identities. It was in Agee’s case that the Supreme Court coldly affirmed that “The right to hold a passport is subordinate to national security and foreign policy considerations.” A lower court put it even more bluntly: “The Secretary [of State] may preclude potential matches from the international tinderbox.”

    The basic premise is that travel abroad (travel within the U.S. is specifically provided for in the Constitution, though the No-Fly list certainly can limit one’s options) is that it is an “aspect” of liberty subject to restraint under due process. In the 1950’s, American Communists were often denied passports if their travel abroad was believed to be in support of their political beliefs, a policy later overturned by the Supreme Court. The Court struggled to balance national security and personal liberty regarding travel through multiple cases, but has never concluded that travel– or having a passport– is a fundamental right.

    Some History

    The whole concept of Americans requiring passports to travel has its roots in national security restrictions. With the exception of roughly the years of the Civil War and World War I, Americans did not need a passport to enter the United States. Americans were first required as a group to hold passports at the start of the Second World War. The travel requirements instituted in the past only during times of national crisis stuck around after WWII through the present day, formalized in the Immigration and Nationality Act of 1952. With echoes of current government actions, what was created as a wartime contingency morphed into a permanent peacetime restriction. The history of passport restrictions is not long, but does resonate into the post-9/11, Post-Constitutional era.

    While no right to travel per se exists for Americans, there is a basic assumption, rooted in the Citizenship Clause of the Fourteenth Amendment and the due process clause of the Fifth Amendment to the Constitution that Americans have something between an expectation, an entitlement and an implied right to return to the United States from abroad, rooted in the concept of citizenship. The ease with which passports can be seized (or boarding an aircraft denied via the No-Fly list) is not seen in conflict; in al-Awlaki’s case, he would have been welcome to come home, albeit in leg irons en route to federal SuperMax. Time is also an issue. How long the government may make a citizen wait before allowing a return to the U.S. under some specific circumstances is not codified and thus can be used as a de facto seizure or punishment without raising a case publicly.

    Why Doesn’t the Government Seize More Passports?

    In short, for an American citizen to travel abroad, whether for vacation or jihad, the government’s permission, in the form of a passport, is required. So why then does the government not use such a long-tested authority to deny or seize the passports of those suspected for traveling to join terror groups?

    While the real answer is obviously unknowable, several ideas may help explain this. First is that in fact such measures might be taking place. Persons who have not yet applied for a passport may find themselves denied issuance, and applications may have been denied or “in processing” without the applicant knowing the reason. The government is under no obligation to tell the person involved nor the media that national security has been invoked.

    More likely however, it is a matter of legal timidity and public relations. Arresting and trying someone for material support for terrorism is something of a set-piece case for post-9/11 law enforcement. There is little legal controversy generated, and almost no danger under present circumstances of any nasty precedent being set. Wide-spread passport seizures could easily create a new chance to bring the issue before the Supreme Court, risky business for a government that much prefers to act as it wishes vis-vis American’s rights.

    The other reason for restraint may simply be public relations. The public is familiar and appears supportive of arrests. Law enforcement in these circumstances are the good guys. Passport seizures sound a bit harsh, totalitarian-like, and are technically done under the authority of the Department of State, who does not enjoy the good guy reputation many attribute to the law enforcement people who “keep us safe.” It could be as simple as law enforcement not being willing to work with the State Department for bureaucratic reasons.

    Regardless, these are dark seas. In a democracy, the right of citizens to depart and return should not on its face be restricted in the interest of the government. The idea of limiting an American citizen’s travel proactively, on the assumption that she or he will end up fighting with ISIS based on documents or web postings, scrapes at liberty, even if the tools are there and it is legal to use them.

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Democracy, Embassy/State, Post-Constitution America, Yemen

    Why Doesn’t TSA Trust the State Department?

    August 2, 2012 // 2 Comments »

    The mighty men and women of TSA have a trust issue. Perhaps many were unloved as children, but they as a group simply are not people persons. Until very recently, a soldier in uniform, the pilot who is going to fly the actual plane, and a guy on a camel with a T-shirt reading “I am a Terrorist” holding an AK-74 were all treated the same at airport security checkpoints. Under some bizarre, irrational interpretation of fairness, limited security resources were not focused on the most likely threats but instead spread thin. A little old grandma’s wrapped birthday gift would set off the same level of scrutiny as a leaking box with wires hanging out the sides.

    No more. A tiny ray of reality seems to have entered the TSA world with the announcement that certain groups of low-risk travelers will be moved into a category called “TSA Pre-check.” No application needed or allowed as with previous attempts to sort out folks. Now, based on where you work and especially on whether or not you hold a US Government security clearance, you will face lighter screening.

    First in the pool are uniformed military at certain airports. Kind of a no brainer.

    Then we learned in a round-about-way that TSA is also including to exclude from full screening many CIA officers. Wired.com reports that TSA signed an agreement with the Director of National Intelligence in February to include members of the intelligence community in “pre check.” Again, kind of a no brainer.

    A Bit of Black Ops in Passports?

    Quite intriguingly, TSA chief John Pistole explained that membership in the special pre-check program is acknowledged when one uses his/her passport as ID. “The beauty of it from my perspective is that the information that the person is a known and trusted traveler is embedded in a bar code in the passport. And it doesn’t distinguish between a member of the intel community or a frequent flier. So the security officer at the checkpoint doesn’t know whoever you are.”

    Passport barcodes are in the back of the booklet and are tied to the physical booklet itself, not the traveler who is issued that booklet. US passports issued after 2007 contain an RFID chip which holds information about the traveler, including all the bio info from the passport and the photo. TSA does not scan or read the passport barcodes when you pass through the airport. They do scan the passport info encoded in plain letters and numbers, and can/do read the RFID chip. It would be interesting to know exactly what database TSA refers this info to to determine who is and who is not a pre-check qualified traveler. That database would have to be largely unclassified, as it would not do to have a handy list of all CIA officers (we hope), just a list of passport numbers and a go/no go code.

    Whither State?

    The justification for including CIA officers as a group in the pre-check program makes sense. As a group they all hold at least Top Secret clearances and are well-known to the government. If you are not ready to trust them to leave their shoes on going through the airport you probably should not trust them to hunt terrorists, operate killer drones and all that. Kind of a no brainer.

    But what about State Department Foreign Service Officers as a group? They are not in the pre-check program. As a group they all hold at least Top Secret clearances and are well-known to the government. If you are not ready to trust them to meet with foreign governments, reconstruct Iraq, Afghanistan and Haiti, why trust them to leave their shoes on going through the airport?

    Ironically, it is the State Department who issues the passports others can use as tickets to faster security processing. Maybe there’s a way State can spoof the passports to get their people included?

    Permission to ease through TSA security has been under discussion inside State for a long time. State’s internal “ideas marketplace,” the Sounding Board, has had a thread on this topic since 2010, with over 140 entries. Yet not a word there or anywhere else on why State’s diplomats are not trusted by TSA. State Department employees coming from overseas were initially excluded from airline discount programs for pets, originally offered only to the military. State had to fight its way into that program, largely through its employee association, AFSA’s, efforts. It is always “People First” at State.

    Bonus for State Department people: It appears State has been part of some inter-agency working group “looking into this” since at least March 2012, with the boffo results above. I contacted AFSA, who tells me they have raised and continue to pursue this very issue with management.

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Democracy, Embassy/State, Post-Constitution America, Yemen