Case 1:16-cv-00375-AJT-Jlg? ?Blo?wrpe? [53 gg??har?age 2 of 14 PagelD# 8141 5] :15 l- I: ORMATION IN THE UNITED STATES DISTRICT COURT FOR TEE EASTERN DISTRICT OF VIRGINIA Alexandria Division 4? . Pimet Dupes. EXHIBIT Arias ELI-IADY, et. al., Plaintiffs, Case No. 1:16-cv-375 (AJTIJFA) V. CHARLES H. KABLE, et al., Defendants. DECLARATION OF HAG-Y TRAN FROEMLING I, Hao-y Tran Freemling, declare as follows pursuant to the provisions of 2.9 U.S.C. 1746: l. I am the Executive Director for Vetting, Of?ce of Intelligence and Analysis, for the Transportation Security Administration (ISA). a component agency of the US. Department of Homeland Security (DHS). [have held this position since January 2018. 2. I understand the Plaintiffs in this action have challenged the constitutionality of the procedures afforded to US. citizens who seek to challenge their purported placement in the Terrorist Screening Database (T SDB). I make this Declaration in support of the Defendants? opposition to Plaintiffs1 Fourth Motion to Compel. The statements herein are based on my personal knowledge and information made available to me in my of?cial capacity. 3. As set forth below; I first describe mandate and highlight the security measures used by TSA to secure aviation. Next, I describe risk-based rules. Finally, I WARNING. This record contains Sensitive Security Information Is noun-alien under? UFR parts 15 and 1520. No pm of - - record my be disclosed to persons without I ?need to know", as de?ned 49 parts 15 e?gnmr trim the written permission oi the Administrator at the Transportation Security Adminix?m?m. or of'l' amputation. Unauthorized relax any result in civil penalty or other agencies, public dlsciusnre is governed by 5 11.5.6552 and 49 CFR part 15 and 1520. Case 5 it?, Egg?lkenfage 3 of 14 PagelD# 8142 313%!le 1-1 stain-mnvt?i-?ORMATIQN describe how risk-based rules inform mission coverage of the Federal Air Marshal Service (FAMS). Mgdate and Security Measures 4. As a result of the terrorist attacks of September 11, 2001, Cengress passed the Aviation and Transportation Security Act of 200] (ATSA), which created TSA. ATSA charged TSA with responsibility ?for security in all modes of transportation" and created a federal workforce to screen passengers and cargo at conunerc?ial airports. ATSA also granted SA broad authority to ?assess threats to transportation," to ?develop policies, strategies, and plans for dealing with threats to transportation security," to ?enforce security-related regulations and requirements," and to ?oversee the implementation, and ensure the adequacy, of security measures at airports." ATSA also speci?cally directed to take appropriate action with reSpect to individuals who may be a threat to civil aviation or national security. The Intelligence Reform and Terrorism Prevention Act of 2004 (IRPTA) directed TSA to implement a pro-?ight passenger pro-screening program comparing passenger information to the No Fly and Selectee Lists and to utilize all appropriate records in the Terrorist Screening Database As recommended in the ?nal report of the National Commission on Terrorist Attacks Upon the United States (9/11 Commission), TSA may also use the ?larger set of watch lists maintained by the federal government.? 49 C.F.R. 1560.3. AT SA further directed TSA to deploy Federal Air Marshals (FAMs) on every ?ight determined to present high security risks.? In determining which ?ights present ?high security risks," ATSA states that ?nonstop, long distance ?ights, such as those targeted on September 11, 2001, should be a priority." W4RNING: This record contains Sensitive Security Infomllion that controlled under 49 CFR parts 15 Ind 1520 No ul'thlli . - - record may be to persons without I ?need to know? . or defined In (9 CFR ports [5 and I??JJropl with tiltz written permission of ill: ofllie Transportation Security rlir "lease may result to civil penalty or other nclion Ferns: F?t?mtnl agencies, public dudoaure ts aovemed CFR part: 151m! 1520 Case 4 0f 14 Page D# 8143 ?5 NEH ?Ff?l IRITY INFORMATION Further, TSA may deploy FAMs on passenger ?ights of air carriers engaged in air tranSportation, including ?ights by aircraft between two places within the United States, and ?ights between a place in the United States and a place outside the United States.I The TSA Administrator is also speci?cally authorized to exercise oversight and responsibility for the functions, duties, and personnel of the FAMS. FAM-s are designated by the Administrator as federal law enforcement officers, and as such, carry the authorities of federal law enforcement officers. From the moment all external doors of an aircraft are closed following the boardng of passengers until the doors are opened to allow passengers to leave, the TSA Administrator has the exclusive responsibility to direct law cnfOrcernent activity related to the Safety of passengers on an aircraft involved in an incident of air piracy. 5. TSA executes its mandate in part through the Secure Flight program, which pro-screens aviation passengers ?ying into, out of, within, and over the U.S. against various Government watch lists. All aviation passengers must undergo security screening prior to entering the sterile area of an airport and boarding an aircraft. Secure Flight may designate an individual for enhanced, standard, or expedited screening at airport security checkpoints. 6. Through Secure Flight, TSA may designate aviation passengers for enhanced sereening based on a variety of criteria including random selection, matching to a risk-based, 1 FAMs are limited to ?ights on [LS-?agged aircraft and do not operate on foreign air can-ici- ?ights into, out of, or over- the United States. WARNING: This record contains Sensitive Security Information that I: controlled under 49 CFR parts 15 and 1520 No record may be disclosed to persons without I ?need In know?. I: de?ned In 49 put: 15 awmrm Ihr written permission ol'llu of?m Transportation Security ol?TrlnIpnrtaIlon. Unauthorized release may result In civil penalty or other It__li_un_ For For: merit meal agencies, publlc disclosure ls governed by 5 [1.312; 552 and 49 CFR part: I5 and l520. Case 1: 16- cv-00375- AJT- gill-{Mn Page 5. of 14 PageID# 8144 intelligence-driven rule, or otherwise posing a threat to civil aviation or national security suf?cient to warrant enhanced screening prior to boarding an aircraft. 7. TSA applies the same checkpoint screening procedures to individuals designated for enhanced screening. regardless of whether the individual is designated due to TSDB status or is designated randomly or for other reasons. In addition, passengers TSA designates for expedited or standard screening are not guaranteed to receive that type of screening and may be required to undergo additional screening as a result of unpredictable and random screening measures at the checkpoint, to resolve a walk- through metal detector alarm or an Advanced Imaging Technology (AIT) alarm, or for other reasons. 8. TSA recommends that all travelers arrive at the airport two to three hours in advance of the scheduled ?ight time. TSA's intent is to clear passengers for entry to the sterile area and to board an aircraft after applying the appropriate security measures. Although passengers may be delayed as aresull of TSA's security measures, the purpose is to ensure aviation security and the freedom of movement for people and commerce. Risk-Based_Rules 9. TSA has eVOlved over time in its approach to aviation security, moving to more risk- based, intelligence-driven security operations; Under this passenger-centric approach, TSA conducts pro-screening to segment passengers by risk. Risk-based security increases operational ef?ciency and security effectiveness by allowing TSA to focus less on lower risk travelers and more on higher risk passengers or those about whom it knows less. Quiet Skies is one of risk-based security programs that identi?es and WARNING: This record contains Sennitive Security Information that is controlled under 49 CFR ls snd_l_ .531]me urrms' record may be disclosed to persons without I ?need to know?. de?ned In ??pgrm?nnd?mfucelu with the written permission of the Administrator at the anupurtntion Security wander-strontium: Secular-y Unauthorized release may mull In clvil nennlu ember nrihm. Poi-T .5. government ngenelna, public disclosure In governed CFR parts Is and 1520. Case 14 PagelD# 8145 10. ll. SENSE 1le; addresses potential threats from individuals who may intend harm to aviation security but who are not in the TSDB maintained by the Terrorist Screening Center (TSC). On December 25, 2009, Urnar Faroulc Abdulmutallab made a failed attempt to detonate an explosive device whiIc onboard ?ight 253 from Amsterdam to Detroit. Mr. Abdulmutallab was not in the TSDB. Following this attack, the President of the United States initiated a review of the facts that permitted Abduimutallab to board that ?ight. In his January 7, 2010 memorandum, the President concluded that immediate actions must be taken to enhance the security of the American people. TSA conducted its own review of the existing threats to aviation security and determined that it needed to mitigate the threat to commercial aviation posed by unknown or partially known terrorists based on analysis of current intelligence on terrorist travel and tradecra?. In order to do so, TSA partnered with US. Customs and Border Protection (CBP) to use the Automated Targeting System (ATS) to assist in designating individuals for enhanced screening during international air travel. ATS is an enforcement and decision support tool that uses risk-based targeting to identify travelers, cargo and conveyances that may need additional scrutiny by CBP at the U.S. border. ATS receives advance information about passengers and crew attempting to ?y to or from the United States. In formation from both the Advanced Passenger Information System (APIS), which includes biographical information such as full name, date of birtln gender, ?ight number, date of arrival and departure, citizenship, and passport/alien registration Card number, among others, and the Passenger Name Record (PNR), which refers to reservation information contained in an air carrier?s electronic reservation WARNING: Tints record contains Sensitive Security Information controlled under ?9 CFR ports 15 and [520. No purumrir" record my In disclosed to wanna without a ?need to know?. or de?ned In 49 CFR part: the written permission ot?theAdmiolstrator ofthe Transportation Security ?Transportation. Unauthorised release may result In clvil penalty or other action. FpLanu public disclosure is gunned by 5 U.S.C. 552 and 49 can put: is and mo. Case Eii?d gy?a fagejpt 14 PagelD# 8146 SENSITIVE saggyarrive-NFUHKIKTION system and/or departure control system that sew forth the identity and travel plans of each traveler or group of travelers included under the same reservation record, are utilized in the vetting of individuals attempting to travel to the United States. 12. ATS compares traveler information to travel patterns requiring additional scrutiny. The patterns are based on CBP officer experience, analysis of trends of suspicious activity and raw intelligence corroborating those trends. For example. ATS can compare information on travelers against criteria in a targeting rule developed by CBP that indicates a particular travel pattern is used by drug smugglers. CBP of?cials can then refer a person who meets such criteria who is attempting to enter or depart the United States for additional scmtiny, o?en known as a secondary inspection. 13? TSA creates two sets of rules that leverage ATS to designate passengers for enhanced screening. TSA's rules rely on an analysis of current intelligence reporting to identify a small portion of the traveling pepulation into higher risk categories to determine whether individUals should receive enhanced screening. The rules developed by TSA exclusively address threats to aviation security or to the homeland. g; as 3 Teas?.2: i=4; i 3' .7 TSA exclusively determines the rules that are used to designate airline passengers for enhanced screening and neither the Terrorist Screening Center nor the Watchlisting Advisory Council are involved in determining the rules. The rules constitute TSA ?nal orders exclusively reviewable in a US. Court of Appeals pursuant to 49 U.S.C. 46110. rules designates passengers on international ?ights for enhanced screening. 4 . international rules that apply to domestic WARMNG: This record contain: Sensitive Security Ilut in controlled under? Cl-?It parts l5 jail?1549' omits man! my be to pencils without: ?need to term". I: dell and tail!) except the permission of the Security Administration or rlir Serum-y of'l'nupomtloe. Unauthorized release my rent]! In civil penalty or other action. 133-4- gave cgendcs. disclosure? governed by 5 [1.5 C. 552 Ind 49 CFR part: 15 and 1520. Case ?led Eggymaga 8 {#14 Page D# 8147 15. 16. I7. sharia-vi: srrui?i?fv mromarton screening operations C?Quiet Skies rules?). TSA identi?es such rules to address unknown threats to aviation security. These rules are applied to a limited set of travelers who matched to an international rule and received enhanced security screening on an international ?ight as a result. Individuals matching to such rules receive enhanced screening for a limited period of time. TSA currently utilizes .Quiet Skies rules. Out of the two million passengers TSA screens each day, the current Quiet Skies mics result in TSA designating approximatelyi it I passengers for enhanced screening. TSA does not con?rm or deny whether an individual received enhanced screening as a result of matching to a rule. Whether or not an individual received enhanced screening as a result of matching to a rule, as well as the rules themselves and certain details about their implementation, constitute Sensitive Securit)r [nfortnation pursuant to 49 U.S.C. I 14(r) and 49 C.F.R. and risk?based rules are only used by Secure Flight and are not used by any other TSA vetting programs. Federal agencies are required to provide ?terrorist information? in their possession to the National Counterterrorism Center (NCTC) for integration into a terrorism identities database. ?'l?enorist information? is de?ned as ?information about individuals known or reasonably suspected to be or to have been engaged in conduct constituting, in preparation for, in aid of, or related to terrorism or terrorist activities.? This requirement excludes individuals who merely match a Quiet Skies rule, as such WARMNG: This record cunt-ins Sensitive Scrurlty Inter-mutton that is controlled under 1520. No part ofthit record may be disdoud to persons without: "need to know?. IJ 49 t?l??'pirts 15 and 1520, except with the written permisslou of the Administrator of the a or the of Transportation. llmutlo?riud release may rerun In :tvtt peril?? ?mart-Tu- ll.3. government agencies. nubile disclosure ts governed by 5 use. 55?. and 49 output, rsud rsza. Case mwmage? 0! 14 PageID# 8148 INFORMATION individuals have only triggered a TSA rule that is an indication that there may be elevated risk that merits enhanced screening. Simply matching to a rule does not constitute derogatory information that the individual has or is suspected to have been engaged in conduct constituting. in preparation of. in aid of?, In related to terrorism or terrorist activities. As a result, TSA does not submit information about individuals who match to a rule to TSC, or the FBI for screening or investigation by those agencies based solely on the match to the rule.2 18. Individuals who matched to 3 Quiet Skies rule will continue to receive enhanced screening. or for a period of I: In order to minimize impacts on travelers, TSA maintains a cleared list to ensure an individual will not continue to receive enhanced screening from matching to a rule inde?nitely, and to enhance privacy, civil rights and civil liberties protections. After or the requisite time period, individuals will not receive enhanced screening as a result of the prior match to a Quiet Skies rule- 19. TSA adds individuals to this cleared list for a period of During this time period, an individual would not be referred for enhanced screening due to. After that. - - socriod, travelers who WARNING: This record to main Serum; Information that ?entailed under-?9 CPR nuts 15 1nd I510 pm shim - record my be Illrdusedu mutthnunw to loan?. unde?ned team ?it-pr with the mitten permilitll olthe Administrator arth- Trumpet-Mien Seem-try homomor- rem-y otTmupomtlon. release any result In ctv? ?pen-w or optimum. Forfl?if govern-1m modes. pulltc Mounts warned by: use1m. Case 14 PagelD# 8149 "required to undergo enhanced security screening, and will again beoor'ne eligible for this cleared list as described above.3 20? TSA rule sets for ATS are developed by the TSA Of?ce of Intelligeme Analysis based on current threat infOnnation. The Of?ce of Intelligence and continually eValuates the performance of the rules and the intelligence supporting them. if a rule is determined to no longer be necessary to address a particular threat, the rule will be deactivated and individuals identi?ed for enhanced screening using the deactivated rule will no longer receive enhanced screening on account of that rule. Further, the rules are reviewed on a quarterly basis by the DHS Of?ce for Civil Rights and Civil Liberties, the DHS Privacy Of?ce, and the DHS Of?ce of the General, Counsel. The purpose of this review is to ensure that rules are based on current intelligence identifying speci?c potential threats; are deactivated when no longer necessary to address these threats; are appropriately tailored to minimize any impact upon bona fide travelers' civil rights, civil liberties, and privacy; and are in compliance with relevant legal authorities, regulatic?ms, and DHS policies. FAMS intelligence-Based Denim-merits FAMs are an integral part of risk-based security where they serve within a matrix of security layers, and o?en as a last line of defense. FAMs serve as a deterrent to those with intent to do harm, and their presence helps to sustain the con?dence of the traveling public. The FAMS is unique in its ?exibility and ability to re-deploy thousands of law 5 Individuals may no longer be required to undergo enhanced screening at an earlier time as aresull ofTSA?s tin-oat assessment of the individual. multiple screenings, deactivation of the particular Quiet Skies rule, or a shorter period of time for receiving enhanced screening for certain rules Immlw?: This record contain: Sensitive Scourlly Information mutt: controlled under 49 CPR parts is and me he port 0"th record my be disclosed to persons without I ?need to know". as de?ned to 490m 31:15. Is ltll?l lift} except with ll'lt permission unite Administrator Security Adngluiglration [Hawaii-y ?Transportation. Unauthorised release may result In penalty or other action. Fr agencies. public disclosure ls governed by 5 552 and 19 cm parts [5 and 1520. Case of 14 PagelD# 8150 asset enforcement of?cers rapidly in reSponse to speci?c threats or incidents in the transportation domain. As a risk-based organization, FAMS is responsive to current intelligence, threats and vulnerabilities and continually reviews its operations to ?nther improve and mature the risk-based mission deployment methodology. 22. Information concerning the deployments, numbers, and operations of FAMs constimtcs SSI pursuant to 49 U.S.C. 114(r) and 49 C.F.R. 1520.5(bX8Kii) (?details of aviation . . security measures, both Operational and technical, whether applied directly by the Federal government or another person,? to inclutlc information ?concerning the deployments, numbers, and operations of? RAM: constitutes SSI). 23. In March 2018, the FAMS began coverage of ?ights with individuals who matched to a Quiet Skies rule while continuing to prioritiZe ?ights -As explained above, TSA formulates risk-based screening rules based uni I to identify higher risk travelers who are not on the TSDB. 24. Of?ce of Intelligence and Analysis (MBA) provides the identities of individuals who matched to a Quiet Skies rule to FAMS up to 72 hours in advance of the individual?s scheduled ?ight. The FAMS analyzes each flight* 25, If a PAM team will cover the night, they will receive information about the passenger in advance, including the individual?s name, ?ight number, the ru!e(s) the passenger matched, and other available information relevant to the team?s coverage. This record contain Sensitive Security Infomtlon that in under i9 [moms IS 15:11. No parrot this record my be almond to parent I ?need to know". dc?unl- tar-:9 (FIE pm: Is and [520. except with the written pet-milieu Administration or the Secretary oi'l'nupomtbu. Unlullorlud release may result shit transit: or ntti?r ?lion. For us. Iowa-emu nee-deg, public disclosure a governed by 5 11.81and I510 Case _1_2 of 14 PagelD# 8151 26. All FAM teams have multiple priorities during a ?ight, including: _monitoring other passengers in the cabin. The FAM team has the same priorities on ?ights with a Quiet Skies passenger (or any other higher-rt sk passenger) onboard, to include I .i monitoring passengers in the cabin, although the FAM team will be sure to observe the higher-risk passenger in case he or she exhibits any suspicious activity. Unless suspicious activity is observed, the FAM team?s coverage of the Quiet Skies passenger is limited to in-?ight observations and observations at' [the airport. PAM teams merely observe what any passenger could observe whi In in the airport or passenger cabin. After the flight, the PAM team will complete a report on which they will indicate whether or not they observed the passenger engage in suspicious activity. If there is no suspicious activity observed. the FAMS will make no report of any observations of the individual. FAMs may also recommend, based on their observations, that an individual no longer receive enhanced screening as a. result of the prior match to a rule. This recommendation is then shared with Him for an assessment as to whether the individual should receive enhanced screening for 28. If the FAMs observe suspicious activity? they will describe that activity on the report. The report is then shared with PMS and 185A personnel. who will independently assess This would not pennanenliy remove the possibility ofthe individual receiving enhanced screenin as the individual could match be randomly designated for enhanced screening. among other reasons. Snaplcious activity includes, but is not limited to,~f . . . answer-m. Hears chihiie sin-try Information um a controlled under-49 on: parts end [?lm??nn??n?hls record my be disclosed to moon without "need In new" In 49 Eigenwihm??. zit-ant with the written nfthe Aduln?h'ltor nt'lhe'l' rampart-don Swarm Administmion or the Secretary ?Transportation. Hallmarked release any result in elv? noisily or 't-?aFE .5. government agencies, public Monro In governed by UM. 552 Ind 49 CFR parts l5 and [320. Case 13 of 14 PagelD# 8152 L- the information to determine whether further sharing is warranted, such as with insider threat division.6 If the suspicious activity rises to the level of suSpected terrorist activity, TSA will share the information with other appropriate government agencies, including NCTC and the FBI. Absent such suSpicious activity, no information is shared. 29. By leveraging risk-based rules through Secure Flight, the FAMS is able to use intelligence driven information as an element in identifying the highest risk domestic and international mission deployments. FAMS provides an adaptive layer of security with the ability to change deployment capability -- literally overnight in response to risk identi?ed by current intelligence. ?5 ?insiders" are, or to be. current or former transportation sectOr workers {including both TSA and private sector personnel) and individuals employed or otherwise engaged in providing services requiring authorized access to transportation facilities, assets, or infrastructure. "Insider Threats" are ?insiders" with the intent to cause harm. to the domain. WARNING: This record contains Sensitive Security information that is controlled under 49 CFR part: 15 ?11115.1?- pairs: this record any be disclosed to persons without I ?need to know?. Is defined In 49 mm Hi- null [516. except with written permission or the Administrator of the runsporu?on $el: urm 311mm om: or" the Secretary of Unauthorized release may melt in civil penalty or other get-mu. ?rnmcot agencies. public disclosure is governed by 5 551 and 49 CFR put: 15 and 1520, Case Egge-ir-I'of 14 PagelD# 8153 SENSITIVE DATED: August 15,, 2018 Arlington, VA Executive Director for Vetting Of?ce of Intelligence and Analysis Transportation Security Administration WARNING. This mm! contains Semitive Security Information that In con rolled under 49 (2511pr 15nd 15111N0 put of um record my be dueloud .1 person: wlthout: ?uni to know?. de?ned In 49 [Imp-131$ ii-ul l510. exupt with an: permiulon of ?u Admin-tumor of the Tnulpomtton or the Sun-rum olTrampomtloa. ?otation-Ind rcluse any result In mu penalty u' may Ian. amt? l' .5 zowrnm n1 menace. public unclean ls governed by 5 EC. 532 no 49 CPR parts I5 Incl 153..