Over the Line

Sara Robinson

A story run last April by MSNBC.com:

MINNEAPOLIS - A Minnesota reservist who spent the past eight months in Iraq was told he couldn't board a plane to Minneapolis because his name appeared on a "no-fly" list as a possible terrorist.

Marine Staff Sgt. Daniel Brown, who was in uniform and returning from the war with 26 other Marine military police reservists, was delayed briefly in Los Angeles until the issue was cleared up.

The other reservists arrived at Minneapolis-St. Paul International Airport as scheduled, but instead of immediately meeting their families, they waited on a bus for Brown.

"We don't leave anybody behind," said Marine 1st Sgt. Drew Benson. "We start together, and we finish together."

Brown arrived more than an hour later.

"A guy goes over and serves his country fighting for eight or nine months, and then we come home and put up with this crap?" Brown told the St. Paul Pioneer Press upon arrival.

Problems at LA airport?
Brown, 32, of Coon Rapids, was returning from service in the Al-Anbar province of Iraq, known as the dangerous Sunni Triangle. He ran into problems at the Los Angeles airport on Tuesday morning.

"I was told it was going to take some time because they informed me I was on a government watch list," Brown said. "People at the Northwest counter said they had to call somebody to get me cleared."

The presence of Brown's name on the watch list apparently resulted from an airport incident when he was on his way to Iraq. He was trying to board a plane last June for training in California before heading to Iraq in September. But Transportation Security Administration screeners found gunpowder residue on his boots — likely left over from a previous two-month tour in Iraq.

"I tried to explain what was going on, that I'd just got home and was going back again," Brown said. "They made a big stink about it, and I ended up missing my flight to California."

A spokeswoman with the TSA told the Pioneer Press on Tuesday she was unfamiliar with Brown's case and not comment on it. A TSA spokeswoman did not immediately return a message from the Associated Press on Wednesday.

Just another horrifying day in George Bush's America. Put that story alongside this one that ran over at Slashdot this morning:

The U.S. Department of Homeland Security has proposed a system which will in essence make it mandatory for you to have permission before leaving or entering the country, effectively putting everyone on a no-fly list unless the government says otherwise. Interestingly, the proposal does not seem to cover personal travel, only that on some sort of carrier like an airline or cruise vessel. While this certainly is concerning, it isn't exactly new, as a passport is already required for circumstances covered under the proposal.

The Identity Project, which was the original source for the Slashdot item, is considerably less sanguine about the new Homeland Security regulations, which are scheduled to go into effect on January 15. In fact, in a public comment they've filed with DHS, they warn that what we're seeing here is yet another group of Constitutional rights crumbling in the grip of yet another DHS power grab:

In the guise of an NPRM [Notice of Proposed Rule-Making] 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 each 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.

Under the proposed rules, orders by the CBP to common carriers 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 undefined, secret, administrative permission-to-travel (“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. (emphasis mine)

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.

In short: Starting on January 15, you can't get on a plane or a cruise ship that might touch US airspace or waters without specific prior approval from DHS. And if they get away with this one, it will open the door for requiring everyone (including yours truly on her weekly mail runs) to get DHS' official blessing before they try to cross the border into or out of the U.S. The decisions, as always, will be made by anonymous bureaucrats who account to no one. There will, as always, be no avenue of appeal.

You don't have to be Sgt. Brown to understand what’s at stake here. Milton Mayer, author of They Thought They Were Free, describes a process that's starting to look all too familiar:

"What happened here was the gradual habituation of the people, little by little, to being governed by surprise; to receiving decisions deliberated in secret; to believing that the situation was so complicated that the government had to act on information which the people could not understand, or so dangerous that, even if the people could understand it, it could not be released because of national security. And their sense of identification with Hitler, their trust in him, made it easier to widen this gap and reassured those who would otherwise have worried about it."

Each step was so small, so inconsequential, so well explained or, on occasion, "regretted," that, unless one were detached from the whole process from the beginning, unless one understood what the whole thing was in principle, what all these "little measures" that no "patriotic German" could resent must some day lead to, one no more saw it developing from day to day than a farmer in his field sees the corn growing. One day it is over his head.

"How is this to be avoided, among ordinary men, even highly educated ordinary men? Frankly, I do not know. I do not see, even now. Many, many times since it all happened I have pondered that pair of great maxims, Principiis obsta and Finem respice - "Resist the beginnings" and "consider the end." But one must foresee the end in order to resist, or even see, the beginnings."