Continueth down the rabbit hole, it appears we must do. After the 11th Circuit clerk’s office accidentally published my brief containing embarrassing quotes from the TSA’s own administratively classified records — provided to me under seal and a court order of secrecy — the government went into full damage control mode. I soon received a call from the court and from the Department of Justice, threatening that even though these documents that they accidentally released were now published all over the Internet (Infowars, Boing Boing, Courthouse News, and even some MSM, such as Philly.com), I must refrain from any discussion of the topic since, in their view, these documents, which have literally reached the screens of millions of people at this point, are still sealed.

I filed a motion asking the court to clarify for the government that I can talk about information that is in the public domain. While I wait for that ruling, I received an e-mail from the DoJ today which purported to have a government-approved “final, redacted copy” of my own brief. Which is funny, because I produced and filed a “public” copy that redacted any discussion of the sealed documents entirely, and because the court in no way gave the government permission to redact my filings. I looked through their redacted version, and it appears the only sentence that they redacted that I did not is the following:

CENSORED BY THE U.S. GOVERNMENT [?]

The government’s claim that this is secret information is, frankly, bullshit. Anyone paying attention to the news knows that no terrorist has taken — or even attempted to take — explosives on an airplane through a domestic airport since before 9/11. How far before 9/11? Well, as I explained on March 6th, 2012 — more than a full year before the government provided me any sensitive documents — in my infamous video beating the TSA’s worthless nude body scanners, it’s been nearly 40 years:

When the machines came out, we were told that the invasion on our privacy, doses of radiation, and trashing of our Constitution were necessary because the old metal detectors weren’t good enough. That “non-metallic explosives” were a threat, even though no one has boarded a plane in the US with any type of explosive in nearly 40 years.

So no, DoJ, I won’t be censoring that line, and I won’t stop talking about the fact that, based on any rational review of public documents in my possession well before your sealed docs, you have zero basis for your continuing to scare the American people by telling them that airplanes will “go BOOM” if we don’t allow you to molest us at airports.

Freedom is not living under a government censor telling me that I can’t point out the elephant in the room.

Today is Day 5 of the TSA’s censoring of my speech after the Court accidentally leaked a brief of mine containing administratively classified information embarrassing to their cause. Courthouse News put out an excellent summary of both my case and the circumstances of the leaked brief, as well as a text version of the leaked brief itself. Since I’m not allowed to speak, I’ll let them speak for me:

> Courthouse News: Defense of Airport Body Scanners Undermined

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Last week, after Infowars published a version of a brief I filed that the court was supposed to keep private due to administratively classified contents, the court and the government attorney on the case contacted me and told me that I may not discuss the leaked brief, even though it was published to no less than millions of people through Infowars, Boing Boing, Reddit, Hacker News, Facebook, Twitter, etc. etc. etc.

They base this assertion on a court order from last June precluding me from “disclosing” sealed records. But, if the records have already been disclosed to the public, talking about them further is not “disclosure” in any meaningful sense of the word. To avoid the possibility of being in contempt of a court order, should the court concur with the asinine argument put forth by the DoJ, I’ve agreed to cease discussion of the contents of the leaked brief pending a motion to the court to clarify their order, which I filed today:

[I]f a piece of information exists within a document sitting in a sealed file in the clerk’s office, while that information also exists within a document located in a public forum, it could fairly be said that any discussion of said information by Petitioner is discussion of the public forum’s copy of the information. Barring Petitioner from discussing information that exists in both a sealed document and the public domain would produce anomalous effects that would severely and unnecessarily limit his speech. For example, if the government had sealed a top secret analysis of “an alien landing in the center of Turner Field at 755 Hank Aaron Drive,” would Respondent be barred from publicly saying that Turner Field is at 755 Hank Aaron Drive, or merely be prohibited from discussing the alien? Petitioner feels that the former is clearly not the intent of the Court’s June 5th, 2013 order, and accordingly, the Court’s intent was only to bar Petitioner from disseminating information unavailable to the public.

Needless to say, the U.S. Attorney on the case is pissed, and promptly sent off a tirade to the court, CC’d to me, about improper service since the copy of my motion she received via e-mail wasn’t signed (and yep, the appellate court rules actually allow for service via e-mail!). So, I rolled my eyes and sent her a signed copy, and now a judge will determine whether I may speak about the leaked doc.

Corbett v. DHS – Motion for Clarification II (.pdf)

I received a call from the clerk’s office of the Eleventh Circuit Court of Appeals stating that opposing counsel (the government) has complained to the Court that I am violating the order sealing the documents upon which my brief is based by talking about their contents — even though the contents of those documents were (accidentally) published by the Court, and then reproduced in the media. I called the attorney on the case, Sharon Swingle of the U.S. Department of Justice, who confirmed that the government’s position is that I have violated court order and must take down the blog post in question.

I tried explaining to Ms. Swingle that the document had been published by a third party and that I was simply discussing that now-public document. I tried explaining to Ms. Swingle how absurd it would be to say that any third party can talk about anything in that document they wanted, but that I was somehow barred. I tried explaining to Ms. Swingle the Streisand Effect, and that she will now be drawing more attention to the documents that the government wants hidden from the public. Ms. Swingle continued to insist that the government’s position was that I must take the comments down, and so I have.

I will file a motion with the court to clarify whether I may comment on a public document, and if permission is granted, I will re-publish my statement. Until then, you’ll have to read through the documents at the article published by Infowars or any of the others who have picked the story up.

Here is the order that the government says I’m violating by talking about a document that was found and published by a third party: Corbett v. TSA – Gag Order

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A couple weeks ago, I filed a brief in the Eleventh Circuit Court of Appeals in my case challenging the constitutionality of the TSA’s nude body scanners and invasive pat-down program. My brief was based on documents that the TSA provided me that were administratively classified as sensitive, and I was ordered not to disclose any of their contents publicly, so I filed a “public” (redacted) brief LINK CENSORED BY THE U.S. GOVERNMENT [?], as well as a “sealed” brief that the Court was not to publish.

Apparently that plan didn’t go so well, as journalists from Infowars discovered that the Court actually failed to seal the unredacted brief, and they have published in full the leaked document. The document — as of yet still available to the public through the PACER court records system — is properly labeled as “sealed” by the clerk’s office, meaning they received and understood my instructions that the document was not to be public, but neglected to hide the attachment from public view.

The information revealed, which I may now comment on since a third party has made it publicly available, is [The rest of this blog post has been censored by the U.S. Government. An attorney with the Department of Justice has contacted me to inform me that despite the fact that they screwed up and released the document, and a third party has already made the document public, I may not talk about it]

Thank you, clerk of the court, for sharing this with the public.

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I’ve been working on this one for a while now. After pawing through several thousand pages of the TSA’s “administrative record” (their alleged rationale behind why they must photograph us naked and literally put their hands in our pants to search us), I filed yesterday a 56 page brief in my case against scope & grope. This is the last remaining challenge to the TSA’s October 2010 decision to invade our bodies and turn already annoying security theatre into blatant sexual assault on the scale of 1.8 million passengers per day. As best I’m aware, all other cases have been tossed, and their filers will not be following up with further appeals.

I’ll be posting as much as I can of the administrative record — some of it is sealed for various reasons — over the course of the coming days, and will be highlighting several revelations of which I don’t think the public is yet aware. I’ll also be working to get the remaining documents unsealed, as one of the sealed records contains an admission that entirely undermines the TSA’s (already weak) justifications for its invasive behavior.

Meanwhile, the US Attorney on my case is furloughed, of course. 😉

Corbett v. DHS – Appellate Brief – Public (.pdf) CENSORED BY U.S. GOVERNMENT [?]
Corbett v. DHS – Appellate Brief – Exhibits (.pdf)
Corbett v. DHS – Appellate Brief – Declaration (.pdf)

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Moments ago, the remaining claims in my lawsuit stemming from being illegally detained at FLL airport and then lied to about the existence of CCTV video of the incident, were dismissed.

The questions before the court were as follows:

1. Can the TSA (or local governments as directed by the TSA) lie in response to a FOIA request?
   Sure, no problem! Even the NSA responds that they “can’t confirm or deny the existence” of classified things for which admitting or denying existence would (allegedly, of course) damage national security. But the TSA? U.S. District Judge Joan A. Lenard granted the TSA the special privilege of not needing to go that route, rubber-stamping the decision of the TSA and the airport authority to write to me that no CCTV footage of the incident existed when, in fact, it did. This footage is non-classified and its existence is admitted by over a dozen visible camera domes and even signage that the area is being recorded. Beyond that, the TSA regularly releases checkpoint video when it doesn’t show them doing something wrong (for example, here’s CCTV of me beating their body scanners). But if it shows evidence of misconduct? Just go ahead and lie.
2. Can the TSA hide the names and faces of its public-facing employees (and any local law enforcement coming to their aid) who are accused of misconduct?
   You bet! Despite the fact that they all wore name tags and I could have legally taken photos of them, Judge Lenard feels that the public servants who illegally searched and detained me deserve “privacy,” and upheld the TSA’s decision to redact their names from every document sent to me and to blur the entirety of every video sent to me. This is the same TSA that cares so much about privacy that they “accidentally” published a copy of my driver’s license in court filings.
3. Can the TSA frustrate court review of whether or not a document is releasable under FOIA simply by “ordering” it secret?
   Why not?! Judge Lenard ruled that once a document is labeled “Sensitive Security Information” (which the TSA does by merely waiving a magic wand and writing “SSI” on the cover of a document) the U.S. District Court loses its power to review that determination, and the U.S. Court of Appeals is the proper forum. But wait, the Court of Appeals doesn’t evaluate FOIA claims, so now, in order to get a document you want, you must petition 2 courts and pay over $800 in filing fees alone. Yes, clearly this is how Congress intended public records laws — designed to allow transparency in government — to work.

On top of this recent heap of fail, Judge Lenard had previously tossed the bulk of my lawsuit — 19 out of 21 charges — and then refused to allow me to appeal those 19 charges until she contemplated these two remaining charges. She then took 6 months to write this 19-page opinion. Her decision today, therefore, is not much of a surprise to me, since Judge Lenard seems to be more inclined to rubber-stamp government thuggery, through convoluted, ill-supported, and needlessly delayed rulings, rather than to dispense justice. I will be filing a notice of appeal this week, sending this case to the U.S. Court of Appeals for the 11th Circuit, and I am strongly tempted to file a complaint of judicial misconduct based on her purposeful delay of my case and the sheer absurdity of some of her arguments. But, appeal first, misconduct complaint later.

Corbett v. TSA – Full Dismissal (.pdf)

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The TSA has been as steadfast about their nude body scanners being safe as the Obama administration has been that “we don’t have a domestic spying program.” The TSA, in fact, has been so “confident” in their scanners’ safety that they have proclaimed them safe even for infants and pregnant women:

Advanced imaging technology screening is safe for passengers, including pregnant women and children. One backscatter technology scan produces the same exposure as approximately two minutes of flying on an airplane. Advanced imaging technology is optional for all passengers.

However, the TSA’s assertion is about as true as the Obama administration’s statements on NSA spying. While reading through the administrative record for my lawsuit, the last remaining challenge in the U.S. Court of Appeals for the constitutionality of the nude body scanners, I came across a table, produced by the FDA at the TSA’s request, showing that children are dosed at more than 1.5x the rate of adults, an infant in your arms gets more than 2x the dose, and your unborn child still receives almost 50% of the radiation that you receive.

This study, produced in 2006 by government scientist Dr. Frank Cerra, was available to the TSA three years before they deployed the body scanners as primary screening, and four years before TSA spokeshole Blogger Bob wrote the passage quoted above. But yet, these records, though released to me as “public records,” are really nowhere to be found for an interested member of the public. I will be publishing the ~1,600 pages of administrative record I received shortly (or as much so as I am allowed to by the Court), but this is, yet again, a systemic culture of hiding the facts. Perhaps the radiation dose received by your unborn baby is not high enough to worry about, but don’t you have the right to know about it in advance?