from hard-to-prove-something-that-cannot-be-confirmed-or-disproved department
Secrecy surrounding all matters of national security continues to frustrate lawsuits alleging rights violations. The Fifth Circuit Court of Appeals has just dismissed a lawsuit filed by Abdulaziz Ghedi, a naturalized US citizen who travels frequently to Somalia, the country in which he was born. According to Ghedi’s complaint, rejecting advances from one federal agency subjected him to continued harassment by a number of other federal agencies.
The decision of the Court of Appeal [PDF] opens with a paragraph that telegraphs the futility of Ghedi’s efforts, as well as the continuing series of indignities the government has decided to inflict on people who just want to travel.
Abdulaziz Ghedi is an international businessman who regularly travels around the world. Frequent travelers, however, are not always trusted travelers. In recent years, Ghedi has had repeated run-ins with one of America’s most beloved institutions: modern airport security.
General indignities were replaced with seemingly more personal indignities when Ghedi decided he was not interested in working part-time for the federal government.
Ghedi complains that since refusing to be an informant for the Federal Bureau of Investigation a decade ago, he has been placed on a watch list, resulting in “extreme burdens and hardship during his displacements”.
This is not a new complaint. This has happened to many immigrants and US citizens who visit countries that the federal government finds interesting. Many, many Muslims have been approached by the FBI to work as informants. And many have reported that their travel experiences worsened noticeably when they refused to do so.
Without going beyond a motion to dismiss, there can be no discovery. And national security concerns mean there won’t be much to uncover, even if a plaintiff survives an initial round of filings.
Unsurprisingly, the government refuses to confirm or deny anything.
This put Ghedi in the crosshairs of a “byzantine structure featuring an alphabet soup of federal agencies”, as the court put it. DHS oversees everything. The daily hassles are handled by the TSA (domestic travelers) and CBP (international travelers). Ghedi has seen more of one (CBP) than the other, but the TSA still handles passenger and baggage screening, so he’s seen a lot of both.
The refusal to join the FBI as a paid informant apparently led to all of the following:
• an inability to print a boarding pass at home, forcing him to interact with ticket agents “for at least an hour on average, while government officials often show up and question him”;
• an SSSS designation on their boarding passes;
• The TSA searches his belongings, “the searches generally last at least an hour”;
• TSA pat-downs when leaving the United States and CBP pat-downs when returning to the United States;
• meetings with federal agents when boarding and disembarking planes;
• questioning and searches by CBP officers “for an average of two to three hours” after returning from an international trip;
• Confiscation by CBP of his laptop and cell phone “up to three weeks”;
• having descended from an aircraft twice after boarding; and
• was detained for seven hours by DHS and CBP officials in Buffalo, New York in May 2012 and detained in Dubai for two hours in March 2019.
Ghedi has contacted DHS through its court-mandated appeals program to inquire about his status twice — once in 2012 and again in 2019. In both cases, DHS declined to confirm or to deny anything about his travel status or his placement on watch lists that could result in enhanced screening and extended conversations with federal agents every time he flew.
Ghedi has sued the heads of all the agencies involved, alleging rights violations stemming from his refusal to become an informant and his apparent placement on a watch list operated by those agencies.
Ghedi makes two Fourth Amendment claims. The former alleges that the heads of DHS, TSA and CBP violated his Fourth Amendment rights through “prolonged detentions” and “numerous invasive, warrantless pat-down searches” without probable cause. The second alleges that the heads of DHS, TSA, and CBP also violated his Fourth Amendment rights through their agents conducting “warrantless searches of his cell phones without probable cause.” The Fourth Amendment protects[t]the people’s right to security of person. . . and effects, against unreasonable searches and seizures.
The district court said he lacked standing to sue. The Fifth Circuit says it does. But quality to sue doesn’t matter if you’re suing the wrong people. The Court of Appeal says there is plausible injury alleged here, but it was not perpetrated by the named defendants.
Even if we find that Ghedi has plausibly alleged injury in fact, he must still satisfy the second prong of standing, namely, that his injury is reasonably traceable to these defendants. Here, Ghedi’s Fourth Amendment claims falter. Indeed, Ghedi is basing his Fourth Amendment claims on TSA and CBP officers searching him and seizing his electronics. He argues that these searches and seizures are atypical actions, even for people on the shortlist. Yet, instead of suing those officers directly, Ghedi filed his Fourth Amendment claims against the heads of DHS, TSA and CBP. Ghedi does not allege that any of these officials personally conducted or directed the searches or seizures he suffered. And his claims that his experiences are atypical run counter to an inference that these agents are following official policy.
Not only that, but the court says Ghedi was never prevented from travelling. At worst, travel has become a constant hassle, marked by hour-long delays, unexplained device seizures, and numerous unwanted conversations with federal agents. But eventually Ghedi got where he was going and I guess that’s good enough.
Ghedi never alleges that he was prevented from finally arriving at his final destination. At most, these allegations provide a reasonable inference that the government inconvenienced Ghedi. But they do not plausibly allege a deprivation of Ghedi’s right to travel.
There are certain rights that the court will recognize, but this is not one of them.
In short, Ghedi does not have the right to travel without hassle. According to the Supreme Court, international travel is a “freedom” subject to “reasonable government regulation”. And with respect to reasonable government regulation, our sister tours argued that government inconvenience during international travel does not deprive a traveler of the right to travel.
And, putting the final nail in the coffin of Ghedi’s litigation, the Court of Appeals says that government secrets can harm individuals but they cannot harm their reputation…because they are secret.
As we noted at the start, Ghedi’s status on the shortlist is a government secret. Simply put, secrets are not stigmata. The very harm a stigma inflicts comes from its public nature. Ghedi has not pleaded any facts to support the fact that the government ever released his status – one way or another – on the shortlist. His claims that the government has affixed the “stigmatizing label of ‘suspected terrorist'” and the “prejudice[ed] . . . his reputation” are legal conclusions and not factual allegations.
This is how it goes for litigants trying to sue for rights violations perpetrated by agencies engaged in national security cases. The allegations are difficult to verify because the government refuses to confirm, deny or even discuss much of its national security work in court. Ghedi could always try this lawsuit again, perhaps armed with FOIA documents relating to his travels and the many agencies that make it difficult for him. But this is unlikely to result in clarifying information for the same reason: national security.
Heads up, the government wins. Tails, the plaintiff loses. Ghedi is still free to sue the individual officers who harassed him, took his belongings and attempted to coerce him into becoming an informant, but given the national security implications and the continued existence of qualified immunity, it’s just as likely that he’ll lose that suit too.
Thanks for reading this Techdirt post. With so much competing for everyone’s attention these days, we really appreciate your giving us your time. We work hard every day to deliver quality content to our community.
Techdirt is one of the few media that is still truly independent. We don’t have a giant corporation behind us, and we rely heavily on our community to support us, in a time when advertisers are less and less interested in sponsoring small independent sites – especially a site like ours that doesn’t does not want to throw punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements and increasingly annoying/intrusive advertisements, we have always kept Techdirt open and accessible to everyone. But to continue to do so, we need your support. We offer our readers a variety of ways to support us, from direct donations to special subscriptions and cool products – and every little bit counts. Thank you.
–The Techdirt team
Filed Under: 5th circuit, abdulaziz ghedi, civil rights, dhs, doj, fbi, informants, somalia