The Stuff of Dystopian Nightmare

ACLU lawyers have stopped border agents from demanding ID after domestic flights.

Commercial airliners are not usually restful environments, but February 2017 was a particularly fraught time for domestic air passengers. Donald Trump had become president a month earlier and had quickly issued his “travel ban” executive order, sparking chaos at the nation’s airports. Although on February 3 a federal district judge enjoined the ban, by February 21 White House Press Secretary Sean Spicer was telling a press briefing that “the President want[s] to take the shackles off individuals in [immigration agencies].” The very next day, Customs and Border Protection agents met Delta Airlines flight 1583 at the gate at John F. Kennedy International Airport. The agents, and the Delta cabin crew, told the passengers that to exit, they would have to show government-issued ID.

There’s nothing unusual about being asked to show ID before getting on a plane, of course, and it is routine for CBP officers to look at documents when passengers arrive in the U.S. from abroad. But 1583 had originated in San Francisco. At no point did it land on foreign soil or fly over foreign airspace. It was an ordinary domestic flight. CBP was demanding ID before allowing passengers to get off the plane.

The agents were armed and wearing body armor. They blocked the exit. One passenger, the Georgetown University sociology professor Corey Fields, told me recently that the agents “weren’t rude or aggressive or intrusive in terms of the micro-interactions. But there was this sort of implied authority—nothing about it felt voluntary.”

Like most air travelers, Fields was focused on the logistics of his journey. He was hungry, and hoped to grab a quick dinner in the terminal before boarding his connecting flight to Philadelphia. Neither the agents nor the cabin crew offered any explanation for the sudden change in procedure. “You definitely felt you weren’t going to get off the plane if you didn’t show your ID,” he said. At the same time, he recalled, the agents gave his documents only a cursory look. “It was a combination of formal and structured but also pointless.”

Even today, it seems like the stuff of dystopian nightmare. In February 2017, as the country confronted the reality of Trump’s immigration agenda, it was (to employ an overused Trump-era word) terrifying. (I wrote about the incident at the time, here and here.)

No one knew what this meant for the next round of immigration wars—and the confusion and concern only deepened when CBP officials airily announced that the operation was “routine.” “We do this every day,” the CBP official in charge of JFK emailed an American Civil Liberties Union lawyer who asked about the incident. “Someone took a picture and put it on twitter. That’s what led to the hysteria.” Asked for its legal authority, CBP provided a federal regulation permitting document checks—on flights arriving from abroad.

Earlier this month, after two years of litigation by the ACLU, CBP agreed to a settlement decree that binds the agency not to repeat its chilling performance at the doorway of Flight 1583. Contrary to its statements at the time, the agreement notes, CBP “does not have a policy or routine practice of compelling or requesting that passengers deplaning domestic flights submit to suspicionless document checks.” In the future, if CBP agents meet domestic flights, they will tell passengers that they don’t need to show papers if they choose not to, and they will not stand so as to “impede passengers’ ability to deplane.” They will ask cabin crews to make the same announcement—that cooperation is voluntary.

The agency promised to distribute the decree to CBP offices at all ports of entry this summer and again in August 2021. CBP also agreed to pay costs and legal fees to the lawyers from the ACLU and the private firm of Covington & Burling, who handled the case on behalf of nine passengers from 1583.

In an interview, the ACLU lawyers—Hugh Handyside and Anna Diakun—made clear the exceptional nature of what happened at JFK that afternoon. (I reached out to CBP headquarters twice, but never got a response to a request for information about the incident.) Immigration and Customs Enforcement—a different division of Homeland Security—apparently had instructions to meet a specific individual, subject to a deportation order, who was scheduled to fly on 1583. ICE personnel will sometimes do a “meet and greet” like this; however, the New York ICE agents found themselves stuck in traffic, and called ahead to the CBP officers already at JFK. Perhaps because of a failure of communication, the CBP agents didn’t get the identifying information of the intended target. At any rate, they apparently decided they had the authority to check every passenger.

As luck would have it, the real target had never boarded 1583 at all.

Meeting a specific person on a flight is one thing. What happened on February 22, however, was what the Fourth Amendment calls a “seizure”—that is, detention by law enforcement from which an individual does not feel free to walk away—of every person on the flight. If the passengers could not leave, the papers check was the equivalent, constitutionally, of an arrest.

“Suspicionless seizures”—that is, forcible detention of individuals for document checks without probable cause or “reasonable suspicion”—are pretty much not allowed. CBP can check documents at borders and ports of entry for immigration purposes; now the agency seemed to be extending its “unshackled” reach to the interior.

The settlement took two years to hammer out because CBP tried to argue the case both ways. Publicly, as we’ve seen, the agency told the world that this kind of thing was routine and happened all the time. Once in court, however, CBP lawyers asked District Judge Nicholas Garaufis to dismiss the case, because what happened on Flight 1583, they said, had never happened before and could never happen again.

In December of last year, Garaufis refused to dismiss the case. The plaintiffs “have submitted statements from [CBP officials] themselves describing the challenged search as part of a ‘routine’ and ‘not unusual’ practice,” he wrote dryly. “Once again, at this stage in the litigation, the court takes the Defendants at their word …”

Though the contradiction seems like pure cynical deception, my interview with the ACLU lawyers suggested that the incident was a malign confluence of Kafkaesque heavy-handedness with Keystone Kops efficiency. But oppressive law-enforcement practices sometimes arise through accidents like this. Had the search of 1583 gone unchallenged, the “unshackled” Homeland Security higher-ups might have found the papers check a new and useful weapon in their immigration arsenal—and Americans might have had to adjust to a new exit routine.

Instead, the ACLU has prepared materials (including this video) telling passengers that both the Constitution and CBP documents recognize that free people show papers only for good reason.

“It is proper to take alarm at the first experiment on our liberties,” James Madison, the sponsor of the Bill of Rights, once wrote. Because of public “hysteria,” this particular experiment has, for now, been halted.