Second Passports

Passport Denials Long a Feature of U.S. Foreign Policy

In between eggnog, opening gifts, along with a bout of flu, last week I reviewed a fascinating article dealing with the near century-long tradition of passport denials by U.S. officials.

You can read the entire article here.

The author, Dr. Jeffrey Kahn demonstrates that today's refusal by the U.S. State Department to issue passports to suspected terrorists or those suspected of possessing terrorist sympathies is nothing new. Indeed, for decades, the authority to approve or deny a passport was vested in a single State Department official. The decisions of this official, Mrs. Ruth Shipley, weren't subject to judicial review.  Her powers, and the arbitrary ways in which she employed them, were conceptually little different from those existing today in terrorist watchlists and similar government efforts.

Mrs. Shipley headed the State Department's Passport Division from 1928 to 1955, and personally reviewed every passport application submitted.  Her decision was final, because until a 1958 Supreme Court decision, passport denials weren't subject to judicial review.

Fast forward to today's "modern" screening methods to keep terrorists—including U.S. citizens—from traveling in U.S. airspace. While the issuance of a passport now is subject to judicial review, once you have it in your possession, if you're on the FBI's Terrorist No Fly List, you won't be allowed to leave—or re-enter—the United States by air.

What's more, the Transportation Security Administration, which hears appeals to individuals placed on the list, routinely refuses to confirm or deny inclusion on the list.  Nor will it disclose the basis for your apparent inclusion, or to provide any assurances about future travel. All you know is that you can't leave the United States by air, and that if you're traveling abroad, you can't re-enter the country. At least with Mrs. Shipley, you knew who had made the decision to deny you a passport.

Want to appeal the decision to place you on the No-Fly List? Good luck! Federal law stipulates that appeals of this status may only be brought in a U.S. federal court of appeals. The procedural and evidentiary obstacles to such a challenge are overwhelming. The lawsuit that has proceeded the furthest in the courts to challenge this policy was filed in 2006 by a Malaysian student placed on the No-Fly List. The lawsuit, filed in 2006, has already traveled twice to the U.S. Court of Appeals for the 9th Circuit.

The most recent ruling in the lawsuit came last week, when a district court judge rejected the Obama administration's effort to use secret arguments and evidence to throw out the case. I anticipate that the government will now invoke the "State Secrets Privilege" to prevent the lawsuit from moving forward. This court-created doctrine permits the government to force a court to dismiss litigation that the government believes would jeopardize U.S. national security.

In 1954, Ruth Shipley was nominated for the Presidential Medal for Merit, the highest civilian honor then awarded by the U.S. government. The citation commended Mrs. Shipley who “being alert to the dangers inherent in the travel abroad of communists and other subversives, initiated and steadfastly adhered to the policy of refusing passports to applicants whose prior actions indicated that the proposed travel would be inimical to the best interests of the United States.”

The No-Fly List is the digitized 21st-century version of Mrs. Shipley. It has the same purpose as well: to deny individuals whose views are deemed to contravene current U.S. government policies.  Moreover, the No-Fly List plainly violates fundamental national and international laws. On April 2, 1992, the United States ratified the Universal Declaration of Human Rights. Article 13 of the Declaration states:

"Everyone has the right to freedom of movement and residence within the borders of each state. Everyone has the right to leave any country, including his own, and to return to his country." Under Article VI, Section 2 of the U.S. Constitution, “treaties made, or which shall be, made, under the authority of the United States, shall be the supreme law of the land.”

Sadly, neither national nor international law appears likely to stop the U.S. government's concerted efforts to deny due process to those placed on the No-Fly List. While today's mechanisms of travel control are far more sophisticated than those that Mrs. Shipley had at her disposal, the net effect is virtually identical: Both U.S. citizens and those wishing to visit the United States are denied a fundamental human right.

Hopefully, you'll never be placed on the No Fly List. But if you are, you'll appreciate the utility of a second passport, "just in case." No, you won't be able to leave or enter the United States by air. But once you've departed, you'll be able to travel free of U.S. government imposed restrictions.

The Nestmann Group, Ltd. can assist individuals seeking a legitimate second citizenship and passport through an economic contribution or investment in Dominica, St. Kitts & Nevis, and in selected EU countries. Please contact us for more information.

Copyright © 2013 by Mark Nestmann

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