from the hard-to-prove-anything-that-can't-be-confirmed-or-denied dept
• an inability to print a boarding pass at home, requiring him to interact with ticketing agents “for an average of at least one hour, when government officials often appear and question” him;
• an SSSS designation on his boarding passes;
• TSA searches of his belongings, “with the searches usually lasting at least an hour”;
• TSA pat downs when departing the U.S. and CBP pat downs when returning to the U.S.;
• encounters with federal officers when boarding and deboarding planes;
• questioning and searches by CBP officers “for an average of two to three hours” after returning from international travel;
• CBP confiscation of his laptop and cellphone “for up to three weeks”;
• being taken off an airplane two times after boarding; and
• being detained for seven hours by DHS and CBP officials in Buffalo, New York in May 2012 and being detained in Dubai for two hours in March 2019.
Ghedi brings two Fourth Amendment claims. The first alleges that the heads of the DHS, TSA, and CBP violated his Fourth Amendment rights through “prolonged detentions,” and “numerous invasive, warrantless patdown searches” lacking probable cause. The second alleges that the heads of the 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]he right of the people to be secure in their persons . . . and effects, against unreasonable searches and seizures.”
The district court said he had no standing to sue.
The Fifth Circuit says he does. But standing to sue doesn't matter if you sue the wrong people. The Appeals Court says there's a plausible injury alleged here, but it wasn't perpetrated by the named defendants.
[. . .] There are some rights the court will recognize but this isn't one of them.
In short, Ghedi has no right to hassle-free travel. In the Supreme Court’s view, international travel is a “freedom” subject to “reasonable governmental regulation.” And when it comes to reasonable governmental regulation, our sister circuits have held that Government-caused inconveniences during international travel do not deprive a traveler’s right to travel.
And, putting the final nail in Ghedi's litigation coffin, the Appeals Court says the government's secrets may harm individuals but they can't harm their reputation… because they're secret.
As we noted at the outset, Ghedi’s status on the Selectee List is a Government secret. Simply put, secrets are not stigmas. The very harm that a stigma inflicts comes from its public nature. Ghedi pleaded no facts to support that the Government has ever published his status—one way or the other—on the Selectee List. His assertions that the Government has attached the “stigmatizing label of ‘suspected terrorist’” and “harm[ed] . . . his reputation” are legal conclusions, not factual allegations.
That's how it goes for litigants trying to sue over rights violations perpetrated by agencies engaged in the business of national security. Allegations are tough to verify because the government refuses to confirm, deny, or even discuss a great deal of its national security work in court. Ghedi could always try this lawsuit again, perhaps armed with FOIA'ed documents pertaining to his travels and the many agencies that make it difficult for him. But that's as unlikely to result in clarifying information for the same reason: national security.
Heads, the government wins. Tails, the plaintiff loses.
Ghedi is still free to pursue lawsuits against the individual agents who hassled him, took his stuff, and tried to coerce him into becoming an informant, but given the national security implications and the ongoing existence of qualified immunity, it's just as likely he'd lose that suit as well."
Filed Under: 5th circuit, abdulaziz ghedi, civil rights, dhs, doj, fbi, informants, somalia
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