New travel document requirements for USA citizens

Under new regulations and procedures announced to take effect over the next month, citizens of the USA will, for the first time, be required to obtain USA government permission in order to return home to their own country from abroad -- from anywhere else in the world, by air or sea or land.

On no other aspect of the right to travel is international law more clear than on the right of return to the country of one's own citizenship: "No one shall be arbitrarily deprived of the right to enter his own country." The new regulations are a flagrant violation of the obligations of the USA as a party to the International Covenant on Civil and Political Rights and other international human rights treaties, as well as a violation of the Constitutional duty of the USA government to treat such treaties as the highest law of the land.

It's to be hoped that some civil liberties or human rights organization or individual will go to court before the end of this month to enjoin the government from putting these rules and procedures into effect, and that citizens will assert their rights by attempting to cross borders without papers, and suing those goons from the USA Department of Homeland Security who try to stop them. But if that doesn't happen, here's what the DHS has promulgated as "final rules" and "procedures":

As I've noted previously, the so-called International APIS final rules effective 19 February 2008 will require all travellers to, from, or via the USA by air to obtain two forms of government permission to travel: (1) a passport, and (2) a "cleared" message from the DHS authorizing the airline to allow the specific person to board the specific flight or ship.

One might argue that a passport is merely a travel document, not a form of permission. But that would be wrong. Because nothing in the law or the regulations for passport issuance (which were revised in November 2007), guarantees anyone a right to a passport, it is in effect a travel permit, issued at the government's discretion. The individualized, per-flight, advance "clearance" message is quite unambiguously a permission-to-travel requirement.

This International APIS rule as originally promulgated in August 2007 applied only to air and sea travel. So it might have allowed, for those with enough time and money, at least a theoretical possibility that, if the USA wouldn't give them permission to come home, they could fly to Canada or Mexico, and return to the USA from there by land.

In practice that might be very difficult, because Canada has been barring passage to people on the USA "no-fly" list, and most flights betwen Europe and Mexico overfly the USA and thus are subject to USA jurisdiction and the APIS rules. But there are some very roundabout and expensive routes from Europe or Africa to Mexico by way of South America.

The DHS has proposed that the "Western Hemisphere Travel Initiative" (WHTI) rules that already (purport to) reqire passports for USA citizens for air travel between Mexico, Canada, and the USA be extended to those crossing USA borders by land and sea. But that portion of the WHTI rulemaking proposals remains pending, with no final rules yet published..

Even this narrow loophole for return to the USA without government permission will apparently be closed, however, by new procedures announced by the DHS in a notice published in the Fegeral Register on 21 December 2007:

CBP [the DHS Customs and Border Protection division] is now amending its field instructions to direct CBP Officers to no longer generally accept oral declarations as sufficient proof of citizenship and, instead, require documents that evidence identity and citizenship from U.S., Canadian, and Bermudian citizens entering the United States at land and sea ports-of-entry.... Beginning on January 31, 2008, a person claiming U.S., Canadian, or Bermudian citizenship must establish that fact to the examining CBP Officer's satisfaction by presenting a citizenship document such as a birth certificate as well as a government-issued photo identification document.

The Federal Register "Notice" acknowledges that the WHTI proposed rules to require passports for land border crossings have not been finalized. But the "Notice" claims that the new document requirement is "separate from WHTI", is not a "rule", and is not subject to any of the same procedural requirements:

The instruction for CBP Officers to no longer generally accept oral declarations alone as satisfactory evidence of citizenship is a change in DHS and CBP internal operating procedures, and therefore is exempt from notice and comment rulemaking requirements under the Administrative Procedure Act, 5 U.S.C. 553(b).

On the basis of this claim. the DHS "Notice" neither acknowledges nor responds to any of the numerous objections that were raised to the proposed WHTI rules from both sides of the border, including formal comments on their illegality by the Identity Project. Clearly, the DHS doesn't want to address those legal defects in its travel document amd permission schemes.

The problem for the DHS is that -- regardless of the procedural requirements for changes to DHS instructions to CBP officers -- CBP officers who act on the new instructions by preventing citizens from entering or leaving the USA will be acting in violation of those citizens' rights and the obligations of the government of the USA under the Constitution and international human rights treaties.

With both this document requirement for USA-Canada/Mexico land travel and the document and permission requirement for international air travel between the USA and the rest of the world coming into effect within the next month, there is an urgent need for someone to challenge these regulations. The procedural issues are quite different, but the substantive issues of the right to travel without government papers or permission are identical.

For what little it's worth, the DHS followed its notice of the new procedures and document requirements for land border crossings with the announcement of the details of a new "passport card". Their idea was, apparently, to assuage the intense and widespread criticism of the new document requirements for land border crossings by promising to offer a cheaper alternative to a passport, "real soon now". But passport cards won't begin to be available until after the new procedures for USA-Canada/Mexico land border crossings take effect.

As I had expected , the passport card will contain a "vicinity" RFID chip, i.e. a chip that can be read at longer range than the "proximity" chip in "RFID passports. The DHS admits that each passport card will respond to any query by sending back a unique chip ID number -- apparently in the clear. So if you want a cheaper alternative to an (RFID) passport, it will have a much longer-range identity broadcasting mechanism. And as with RFID passports, there's nothing in the new rules to restrict private and commercial tracking of passport cards by their unique chip numbers, or secret commercial aggregation, use, and sale of those tracking logs.