Yesterday I filed my opening brief — the main document that sets out one’s case in the U.S. Court of Appeals — in my case against the TSA’s international security interview program (ISIP).  With the ISIP, the TSA forces airlines that are flying back to the United States to hire security contractors to ask you and everyone else on your flight personal questions.  The idea is that a terrorist wouldn’t be able to keep composed, and refusal to answer their questions seems to mean denied boarding (although the TSA says they don’t strictly require denied boarding).

The Administrative Record in
Corbett v. TSA, 15-10757

When challenging TSA decisions, the TSA is required to produce all of the documents related to the decision together in a collection known as the “Administrative Record.”  The document is, of course, heavily redacted because the TSA likes to pretend that it has secrets like real federal law enforcement agencies do.  The Administrative Record in this case was strange, though: it didn’t contain a single document that discussed the efficacy of the program, nor one discussing how the program was planned, nor a privacy impact assessment.  It didn’t even explain why the program was created, except for an 8-page declaration submitted by TSA Director of Aviation Michael Keane, created not when the program was, but in response to my lawsuit:

This overseas interview process was instituted [after] an incident that occurred at London’s Heathrow Airport in April 1986. That incident centered around Nezar Nawwaf al-Mansur al-Hindawi, a Jordanian national who had been recruited by Syrian Air Force Intelligence to participate in a plot to destroy an El Al airliner. In furtherance of that plot, Hindawi placed explosives in the bag of his pregnant Irish fiancee, Anne-Marie Murphy, prior to her flight on an El Al aircraft bound for Tel Aviv, Israel. When she attempted to board her flight at Heathrow Airport, however, El Al security officials stopped her and discovered the explosives. A crucial step in the detection of this plot was the fact that El Al officials questioned the passenger about her luggage and its contents.”

Well, that sounds like a reasonable explanation… until you consider two things:

  1. El Al’s program is based on, and works only because it uses, blatant ethnic and religious discrimination.  It is not secret at all that if you are Jewish or Israeli, you are assigned a low risk and cleared quickly, while if you are Muslim or Arabic (or just happen to say the wrong thing), you’ll be strip searched, your bags will be emptied and each article x-rayed individually, and you’ll be seated next to an air marshall.  Its program is so abusive that it demands its security officials be given diplomatic immunity.  Even if we really wanted to model this (and as a free nation, we shouldn’t), El Al’s program only functions when they are able to narrow down the travelers to get the “full treatment” via this discrimination.  It would be impossible to do what they do to Muslims to the entire flight.
  2. The Hindawi plot was not uncovered because of an interview!  Yes, El Al interviewed Ms. Murphy, but according to the Israel Security Agency, the interview went well and aroused no suspicions:

No suspicious signs were revealed during her questioning. The passenger, who gave the impression of being a simple woman, responded in the negative when asked if she had been given anything to bring to Israel. During the questioning she was calm, and revealed no sign of nervousness. In the check of her baggage, suspicious signs came to light…

So let’s get this straight: the TSA has a program modeled after one that blatantly discriminates against people based on their skin and which god they pray to, removed the discrimination (mostly) but still expected the program to function the same way, and justifies it based on an event that didn’t actually happen the way they claim.  And I’m the asshole for refusing to participate.  Got it.

Corbett v. TSA III – Opening Brief (.pdf)

Corbett v. TSA III – Administrative Record, Vol. 1 (.pdf, 14 MB)
Corbett v. TSA III – Administrative Record, Vol. 2 (.pdf, 18 MB)