The Department of Homeland Security proposed new rules back in July that would fundamentally undermine the right of American citizens to travel abroad. Public carriers--airlines, cruise lines, even fishing boats--will be required to submit the names of all passengers to Homeland Security prior to departure and to obtain permission from Homeland Security to board those passengers. These new rules will take effect January 14, 2007.

Current practices already represent a severe restriction on the right to travel. The "no-fly list" dates back to 1990, but Patriot Act I created a new agency, the Transportation Security Administration, that was charged with creating and maintaining a list of people who were not allowed to board airplanes. The list was reported to have contained around 1,000 names by the end of 2001 of people strictly forbidden to fly plus a second longer list of "selectees" who were to be called out of line and subjected to closer searches and intense questioning before they were allowed to board. Many American politcal activists reported that they were on the "selectee" list. These lists of names were provided to airlines who were charged with the task of separating out listed passengers and notifying authorities. In December, 2005, a Swedish airline leaked that the list had grown from 1,000 to over 80,000.

The new procedure will completely eliminate the opportunity for the public to find out how many people are on the list. No airline or cruise company will ever receive a "no-fly" or "selectee" list. Instead of providing a passenger manifest after departure as now required by the Customs and Border Patrol, airlines, cruise lines and other public carriers will have to provide a provisional pasenger list prior to departure. This list will be checked against a Homeland Security list of citizens approved for international travel, and the carrier will be ordered not to board those who are not approved. This is from the proposed rule itself:

Therefore, CBP [Customs and Border Patrol] has concluded that the prevention of a high-risk passenger from boarding an aircraft is the appropriate level of security in the commercial air travel environment. Manifest data received and vetted prior to passenger boarding will enable CBP to attain this level of security. Further, this vetting of passengers on international flights should eliminate the need for passenger carriers to conduct watch list screening of these passengers, upon publication and implementation of a final rule. Accordingly, with this proposed rule,CBP is proposing two transmission options for air carriers to select from at their discretion: (i) the submission of complete manifests no later than 60minutes prior to departure or (ii)transmitting passenger data asindividual, real-time transactions, i.e.,as each passenger checks in, up to but no later than 15 minutes prior todeparture. Under both options, the carrier will not permit the boarding of a passenger unless the passenger has been cleared by CBP.

Seagoing vessels are required to submit their list 60 minutes prior to departure under the rule.

Who will be on the list? That's a secret. What criteria will determine who is on and who is off the list? That's a secret. How many people will be approved and how many will not? That's a secret. If you're not on the approved list, how can you petition the government to change your status? You can't.

The non-profit Identity Project has filed comments with Homeland Security urging that the rule changes be dropped. They argue that they violate the U. S. Constitution and international law:

The [proposed rule change] would replace a requirement for ex post facto notice to the CBP of information about who is on each vessel (ship or plane) with anunconstitutional system of prior restraint of international travel, entirely unauthorized by statute and inconsistent with the U.S. obligations embodied in the International Covenant on Civil and PoliticalRights. Under the proposed rules, orders by the CBP [Customs adn Border Patrol] to common carriers not to transport specific persons would not be based on restraining orders (injunctions) issued by competent judicial authorities. Instead,they would be based on an undefined, secret, administrative permission-to-travel ("clearance") procedure subject to none of the procedural or substantive due process required for orders prohibiting or restricting the exercise of protected First Amendment rights. From the authority of law enforcement officers andagencies to enforce certain types of orders, once lawfully issued by competent judicial authorities, the [proposed rule change] would usurp for the CBP the authority to issue those orders on its own.

I remember watching Sound of Music when I was a child and feeling my heart race as the Von Trapp family made its escape from Nazified Austria. I could never have imagined that a day would come when those wanting to leave the United States would be forced to "make a run" for the border to evade a myriad of obstacles placed by an American government in the path of those who wished to exercise their fundamental human right to emigrate.

That day has not yet arrived. But it will on January 14.

Being a comic, Tom Irwin can find humor in almost any situation. But a not-so-funny thing happened, Irwin says, after he began performing a one-man show two years ago about his experiences entertaining U.S. troops.

Shortly after opening his stage show "25 Days in Iraq," the 40-year-old Los Feliz resident and U.S. Army veteran says, airline travel was suddenly a hassle. When he tried to use self-ticketing booths at airports, he was always directed to an agent. When he showed his identification at ticket counters, he was asked to wait while an agent or security official picked up a telephone — or stepped away from the counter — to make inquiries.

The annoying delays continued trip after trip. And they became all the more perplexing this summer when Irwin was cleared to perform his show at the White House for about 120 staffers.

In August, just weeks after that show, Irwin encountered another delay, this time at Reagan National Airport. Exasperated, he said, he asked an Alaska Airlines ticket agent, "Why am I always getting stopped before flights?"

The agent handed him the answer: a form letter from the Transportation Security Administration.

"As part of the security administered at airports," it read, "TSA prepares and maintains watch lists of persons who are known to pose, or are suspected of posing, a threat to civil aviation or national security.

"TSA recognizes that some people have been subjected to frustrating delays at airports as a result of being mistaken for an individual who, in fact, is on a watch list," the letter adds, outlining a procedure to expedite the airport screening process.

When he first received the letter, Irwin recalls, he was surprised and angry. "It was so enigmatic," he said. "It was like saying you are in trouble but not telling you why."

In a recent interview, TSA spokeswoman Amy von Walter said she could not address the specifics of Irwin's case or confirm if a person is on the watch list. But those who are allowed to board planes — like Irwin — are clearly not on a "no fly" roster kept by the government, she said.

"We do know there are passengers with name matches or name similarities" to those actually barred from flights, Von Walter said. And just as the form letter indicates, she said, those passengers are encouraged to contact the TSA to clear up the confusion.

To date, Irwin said, he has not done that. But the notion that he could travel with the U.S. military, perform at the White House and yet still be stopped before flying to comedy appearances stuns him, he said. During the last two years, he noted, he has been vetted by the Defense Department and the U.S. Secret Service. Flying to combat zones, he said, he was issued a performer's military ID that is the traveling equivalent of a VIP pass.