TSA secrecy impedes Chowdhury’s travel discrimination case

The government’s effort to thwart Mr. Gilmore’s attempt to vindicate his rights by declaring the regulation it’s enforcing against him secret is not an isolated occurrence. In litigation currently pending in the U.S. Court of Appeals for the Second Circuit, in which a native U.S. citizen is alleging discrimination based on race by Northwest Airlines, the government has questionably categorized piles of relevant evidence as “sensitive security information” and, therefore, off-limits to the plaintiff’s attorneys. More egregiously, it claimed that the courts cannot review its determination. Links to the Second Circuit briefs appear below.

The background facts: Arshad Chowdhury is a native United States citizen of Bangladeshi ancestry who was studying for his MBA at Carnegie Mellon University. In October 2001, he attempted to fly from San Francisco to Pittsburgh on Northwest Airlines. At the gate counter, a Northwest representative told him that there was a “phonetic similarity” between Mr. Chowdhury’s name and a name on a government watch list of suspected terrorists, and, therefore, he could not board until law enforcement cleared him. FBI and local law enforcement officials then detained and questioned Mr. Chowdhury and, after determining that he posed no security threat, sent him on his way. Nevertheless, as he walked down the jetway to board the plane, a Northwest employee approached him and said that he could not board. When Mr. Chowdhury asked why, Northwest gate agents responded in a rude manner and threatened to leave him stranded at the airport. In the presence of the gate agents, Mr. Chowdhury asked the law enforcement officials present whether he was a potential threat; all of them responded that he was not. Northwest eventually gave him a ticket for a US Airways flight that left minutes later at another gate, and he was able to return home. About one month later, however, when Mr. Chowdhury attempted to fly again on US Airways, an employee of that airline informed him that a security block had been placed on his name, apparently by Northwest, and that it may have been disseminated to airports nationwide. In order to fly, Mr. Chowdhury would again have to be cleared by the FBI.

The lawsuit: Mr. Chowdhury filed suit alleging, among other things, that Northwest discriminated against him based on race and violated his constitutional right to privacy by causing his name to be listed among suspected terrorists and distributed throughout the country. But his ability to argue his case has been brought to a standstill by the government, who has prevented Northwest from turning over hundreds of pages of relevant evidence because it deems those documents “sensitive security information” (”SSI”) and, thus, completely unreviewable by Chowdury’s attorneys — even under a protective order. (Northwest’s attorneys, however, have access to the relevant materials, and, as a general matter, thousands of airline employees are privy to SSI on a daily basis.) Moreover, it strains imagination as to how some of the materials designated by the government as SSI could possibly warrant secrecy (see pgs. 41-43 of Chowdhury’s opening brief). He therefore also sued in the Second Circuit to overturn TSA’s “orders” that designated relevant case materials as SSI.

The government’s position: The government’s argument goes beyond simply whether it can designate materials SSI. It claims the authority to designate materials and unilaterally prohibit discovery under any terms without explicit authorization from Congress to do so and without judicial review of that decision. This is all the more chilling considering that Mr. Chowdhury is not asking for the SSI materials to be made public; rather, he simply wants his lawyers to be able to see it so he can make his case.

This case, like Mr. Gilmore’s, tests the boundaries of executive power to unilaterally make relevant materials off-limits to individuals seeking to vindicate their rights.

Links to Chowdhury’s Brief, US brief, Chowdhury’s Reply (all in pdf)

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