[Infowarrior] - New travel document requirements for USA citizens

[Richard Forno]

New travel document requirements for USA citizens

http://hasbrouck.org/blog/archives/001371.html

Under new regulations and procedures announced to take effect over the next
month, citizens of the USA will, for the first time, be required to obtain
USA government permission in order to return home to their own country from
abroad -- from anywhere else in the world, by air or sea or land.

On no other aspect of the right to travel is international law more clear
than on the right of return to the country of one's own citizenship: "No one
shall be arbitrarily deprived of the right to enter his own country." The
new regulations are a flagrant violation of the obligations of the USA as a
party to the International Covenant on Civil and Political Rights and other
international human rights treaties, as well as a violation of the
Constitutional duty of the USA government to treat such treaties as the
highest law of the land.

It's to be hoped that some civil liberties or human rights organization or
individual will go to court before the end of this month to enjoin the
government from putting these rules and procedures into effect, and that
citizens will assert their rights by attempting to cross borders without
papers, and suing those goons from the USA Department of Homeland Security
who try to stop them. But if that doesn't happen, here's what the DHS has
promulgated as "final rules" and "procedures":

As I've noted previously, the so-called International APIS final rules
effective 19 February 2008 will require all travellers to, from, or via the
USA by air to obtain two forms of government permission to travel: (1) a
passport, and (2) a "cleared" message from the DHS authorizing the airline
to allow the specific person to board the specific flight or ship.

One might argue that a passport is merely a travel document, not a form of
permission. But that would be wrong. Because nothing in the law or the
regulations for passport žssuance (which were revised in November 2007),
guarantees anyone a right to a passport, it is in effect a travel permit,
issued at the government's discretion. The individualized, per-flight,
advance "clearance" message is quite unambiguously a permission-to-travel
requirement.

This International APIS rule as originally promulgated in August 2007
applied only to air and sea travel. So it might have allowed, for those with
enough time and money, at least a theoretical possibility that, if the USA
wouldn't give them permission to come home, they could fly to Canada or
Mexico, and return to the USA from there by land.

In practice that might be very difficult, because Canada has been barring
passage to people on the USA "no-fly" list, and most flights betwen Europe
and Mexico overfly the USA and thus are subject to USA jurisdiction and the
APIS rules. But there are some very roundabout and expensive routes from
Europe or Africa to Mexico by way of South America.

The DHS has proposed that the "Western Hemisphere Travel Initiative" (WHTI)
rules that already (purport to) reqire passports for USA citizens for air
travel between Mexico, Canada, and the USA be extended to those crossing USA
borders by land and sea. But that portion of the WHTI rulemaking proposals
remains pending, with no final rules yet published..

Even this narrow loophole for return to the USA without government
permission will apparently be closed, however, by new procedures announced
by the DHS in a notice published in the Fegeral Register on 21 December
2007:

    CBP [the DHS Customs and Border Protection division] is now amending its
field instructions to direct CBP Officers to no longer generally accept oral
declarations as sufficient proof of citizenship and, instead, require
documents that evidence identity and citizenship from U.S., Canadian, and
Bermudian citizens entering the United States at land and sea
ports-of-entry.... Beginning on January 31, 2008, a person claiming U.S.,
Canadian, or Bermudian citizenship must establish that fact to the examining
CBP Officer¹s satisfaction by presenting a citizenship document such as a
birth certificate as well as a government-issued photo identification
document.

The Federal Register "Notice" acknowledges that the WHTI proposed rules to
require passports for land border crossings have not been finalized. But the
"Notice" claims that the new document requirement is "separate from WHTI",
is not a "rule", and is not subject to any of the same procedural
requirements:

    The instruction for CBP Officers to no longer generally accept oral
declarations alone as satisfactory evidence of citizenship is a change in
DHS and CBP internal operating procedures, and therefore is exempt from
notice and comment rulemaking requirements under the Administrative
Procedure Act, 5 U.S.C. 553(b).

On the basis of this claim. the DHS "Notice" neither acknowledges nor
responds to any of the numerous objections that were raised to the proposed
WHTI rules from both sides of the border, including formal comments on their
illegality by the Identity Project. Clearly, the DHS doesn't want to address
those legal defects in its travel document amd permission schemes.

The problem for the DHS is that -- regardless of the procedural requirements
for changes to DHS instructions to CBP officers -- CBP officers who act on
the new instructions by preventing citizens from entering or leaving the USA
will be acting in violation of those citizens' rights and the obligations of
the government of the USA under the Constitution and international human
rights treaties.

With both this document requirement for USA-Canada/Mexico land travel and
the document and permission requirement for international air travel between
the USA and the rest of the world coming into effect within the next month,
there is an urgent need for someone to challenge these regulations. The
procedural issues are quite different, but the substantive issues of the
right to travel without government papers or permission are identical.

For what little it's worth, the DHS followed its notice of the new
procedures and document requirements for land border crossings with the
announcement of the details of a new "passport card". Their idea was,
apparently, to assuage the intense and widespread criticism of the new
document requirements for land border crossings by promising to offer a
cheaper alternative to a passport, "real soon now". But passport cards won't
begin to be available until after the new procedures for USA-Canada/Mexico
land border crossings take effect.

As I had expected , the passport card will contain a "vicinity" RFID chip,
i.e. a chip that can be read at longer range than the "proximity" chip in
"RFID passports. The DHS admits that each passport card will respond to any
query by sending back a unique chip ID number -- apparently in the clear. So
if you want a cheaper alternative to an (RFID) passport, it will have a much
longer-range identity broadcasting mechanism. And as with RFID passports,
there's nothing in the new rules to restrict private and commercial tracking
of passport cards by their unique chip numbers, or secret commercial
aggregation, use, and sale of those tracking logs.