Homeland Security Tightens Grip on International Travel

A radical change in international travel rules has been lost in these tumultuous last few months that have seen the demise of habeas corpus, the legalization of torture and the expansion of the President's martial law powers.

The Department of Homeland Security proposed new rules back in July that would fundamentally undermine the right of American citizens to travel abroad. Public carriers--airlines, cruise lines, even fishing boats--will be required to submit the names of all passengers to Homeland Security prior to departure and to obtain permission from Homeland Security to board those passengers. These new rules will take effect January 14, 2007.

Current practices already represent a severe restriction on the right to travel. The "no-fly list" dates back to 1990, but Patriot Act I created a new agency, the Transportation Security Administration, that was charged with creating and maintaining a list of people who were not allowed to board airplanes. The list was reported to have contained around 1,000 names by the end of 2001 of people strictly forbidden to fly plus a second longer list of "selectees" who were to be called out of line and subjected to closer searches and intense questioning before they were allowed to board. Many American politcal activists reported that they were on the "selectee" list. These lists of names were provided to airlines who were charged with the task of separating out listed passengers and notifying authorities. In December, 2005, a Swedish airline leaked that the list had grown from 1,000 to over 80,000.

The new procedure will completely eliminate the opportunity for the public to find out how many people are on the list. No airline or cruise company will ever receive a "no-fly" or "selectee" list. Instead of providing a passenger manifest after departure as now required by the Customs and Border Patrol, airlines, cruise lines and other public carriers will have to provide a provisional pasenger list prior to departure. This list will be checked against a Homeland Security list of citizens approved for international travel, and the carrier will be ordered not to board those who are not approved. This is from the proposed rule itself:

Therefore, CBP [Customs and Border Patrol] has concluded that the prevention of a high-risk passenger from boarding an aircraft is the appropriate level of security in the commercial air travel environment. Manifest data received and vetted prior to passenger boarding will enable CBP to attain this level of security. Further, this vetting of passengers on international flights should eliminate the need for passenger carriers to conduct watch list screening of these passengers, upon publication and implementation of a final rule. Accordingly, with this proposed rule,CBP is proposing two transmission options for air carriers to select from at their discretion: (i) the submission of complete manifests no later than 60minutes prior to departure or (ii)transmitting passenger data asindividual, real-time transactions, i.e.,as each passenger checks in, up to but no later than 15 minutes prior todeparture. Under both options, the carrier will not permit the boarding of a passenger unless the passenger has been cleared by CBP.

Seagoing vessels are required to submit their list 60 minutes prior to departure under the rule.

Who will be on the list? That's a secret. What criteria will determine who is on and who is off the list? That's a secret. How many people will be approved and how many will not? That's a secret. If you're not on the approved list, how can you petition the government to change your status? You can't.

The non-profit Identity Project has filed comments with Homeland Security urging that the rule changes be dropped. They argue that they violate the U. S. Constitution and international law:

The [proposed rule change] would replace a requirement for ex post facto notice to the CBP of information about who is on each vessel (ship or plane) with anunconstitutional 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 PoliticalRights. Under the proposed rules, orders by the CBP [Customs adn Border Patrol] 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 andagencies to enforce certain types of orders, once lawfully issued by competent judicial authorities, the [proposed rule change] would usurp for the CBP the authority to issue those orders on its own.

I remember watching Sound of Music when I was a child and feeling my heart race as the Von Trapp family made its escape from Nazified Austria. I could never have imagined that a day would come when those wanting to leave the United States would be forced to "make a run" for the border to evade a myriad of obstacles placed by an American government in the path of those who wished to exercise their fundamental human right to emigrate.

That day has not yet arrived. But it will on January 14.