The Abominable No Fly List
Last week the US government prohibited poet and journalist Amjad Nasser from speaking at an event to inaugurate the Gallatin Global Writers series at New York University. How did the government do this? By having a policeman at the event inform Nasser that he would be arrested if he took his turn to speak at the event? No, that would be a clear prior restraint on speech in violation of the First Amendment of the United States Constitution — a government action courts routinely rule is prohibited. Instead, the US government simply banned Nasser from flying to the conference.
Nasser recounts the process by which his participation in the event was blocked by a faceless Department of Homeland Security agent on the other end of a phone line at London Heathrow Airport. At the airport terminal, Nasser was handed a phone whereupon the US bureaucrat on the call peppered him with personal questions about Nasser and the event at which Nasser was planning to speak. Nasser relates that, after two hours on the phone, the questioner informed Nasser that Nasser was banned from taking the already booked, and by then already departed, US-bound flight.
While Nasser, a British and Jordanian citizen, had to answer a series of questions regarding his private affairs in hopes that he would just be allowed to board the plane and fulfill his speaking commitment, the US bureaucrat on the other end of the line was not obliged to even provide an explanation for why Nasser was prevented from boarding the plane. Nasser relates how the phone interrogation wound down upon the inquisitor’s announcement of Nasser’s travel prohibition:
… he said: I am sorry. You cannot board this departing plane (It had already taken off) to New York.The direct result of Nasser’s ban from the flight is that he was prevented from speaking in person at the event in New York City. A second very important result is that anyone who hears the story of Nasser’s travel restriction learns the lesson that if you want to travel freely it is best to not speak out about anything that could risk provoking the ire of the US government — or even of any random, faceless US bureaucrat who may hold veto power over your travel plans. This threat hanging over travelers certainly, in the language of US courts, “chills” speech. But, being removed a step from outright speech restrictions, courts would be less likely to find the travel prohibition violates of the First Amendment — especially so long as the government can get away with providing absolutely no reason for imposed travel prohibitions.
- What is the reason?
- I cannot disclose that.
- Do I not have a right to know the reason?
- Just like that?
- Just like that.
While Nasser’s ordeal alone is disturbing, what is even more disturbing is that such banning of airplane travel is routinely meted out by US bureaucrats upon travelers both foreign and American. And, as in the case of Nasser, these other blacklisted travelers are regularly provided absolutely no reason for the deprivation of their ability to exercise their right to travel.
The treatment of Nasser and other people subjected to the US government travel blacklist is properly describable as Kafkaesque, reminiscent of the arrest of Josef K. at the beginning of Franz Kafka’s novel The Trial:
"I want to see Mrs. Grubach …," said K., making a movement as if tearing himself away from the two men - even though they were standing well away from him - and wanted to go. "No," said the man at the window, who threw his book down on a coffee table and stood up. "You can't go away when you're under arrest." "That's how it seems," said K. "And why am I under arrest?" he then asked. "That's something we're not allowed to tell you. Go into your room and wait there. Proceedings are underway and you'll learn about everything all in good time. It's not really part of my job to be friendly towards you like this, but I hope no-one, apart from Franz, will hear about it, and he's been more friendly towards you than he should have been, under the rules, himself. If you carry on having as much good luck as you have been with your arresting officers then you can reckon on things going well with you."The US government’s No Fly List operates in opaqueness, like the arrest of K. An individual on the No Fly List is administratively denied the ability to exercise the right to travel, as well as to exercise rights that travel facilitates — from free speech to participating in commerce to visiting family and friends, all without any of the due process the US Constitution guarantees. By an entirely secret process your name ends up on the No Fly List. You find out about your travel prohibition by showing up for a flight and being told you cannot fly on your booked flight, and that’s that. It is you at the airport with Transportation Security Administration bureaucrats offering at best a mix of platitudes, warnings, and “helpful advice” about how if you jump through all the right hoops you just might be able to convince the government to again respect — until it may decide arbitrarily not to again — your right to travel. They may well even tell you that they are sticking their necks out for you by talking with you for a few minutes.
Want to know for sure if you are on the No Fly List and, if so, why? Here is what you do: Make a federal case of it; sue the US government in federal court. That is what several people did with the help of the American Civil Liberties Union over four years ago. On Friday the federal district court judge hearing the case ordered the US government to disclose by January 16 whether the 14 plaintiffs, who have been barred from air travel, are in fact on the No Fly List and, if they are, why.
Justice would be better served if the US government just followed the US Constitution. The Fifth Amendment prohibits the US government from depriving any person of “life, liberty, or property, without due process of law.” Due process would involve the government being required to prove in a US district court all the elements of a statute permitting the denial of travel rights. And that statute would have to have become law through the constitutionally prescribed method, be clear in its meaning, be consistent with constitutional limitations of government power, and be publicly reviewable. Employing due process would also involve the person the government seeks to deny the ability to travel having all his rights respected as should be the case for other defendants in court actions brought by the US government — rights such as the right be represented by an attorney, the right against self-incrimination, the right to confront witnesses, the right to a jury trial, and the right to appeal an adverse district court decision to a US appellate court.
The current Star Chamber system has none of these liberty-protecting attributes. For a window into the depraved manner in which the No Fly List, along with the related Selectee List and Terrorist Watchlist, operates, read Jeremy Scahill and Ryan Deveraux’s July 23 exposé that begins with the following account:
The Obama administration has quietly approved a substantial expansion of the terrorist watchlist system, authorizing a secret process that requires neither “concrete facts” nor “irrefutable evidence” to designate an American or foreigner as a terrorist, according to a key government document obtained by The Intercept.Even beyond these lists and their employment in rights violations, President Barack Obama claims the authority, and has acted upon this claimed authority many times, to order the “targeted killing” via drone missile or otherwise of anyone in the world. The related list he approves in secret is the Kill List, and the creation and use of this list also provides for absolutely no due process protection.
The “March 2013 Watchlisting Guidance,” a 166-page document issued last year by the National Counterterrorism Center, spells out the government’s secret rules for putting individuals on its main terrorist database, as well as the no fly list and the selectee list, which triggers enhanced screening at airports and border crossings. The new guidelines allow individuals to be designated as representatives of terror organizations without any evidence they are actually connected to such organizations, and it gives a single White House official the unilateral authority to place entire “categories” of people the government is tracking onto the no fly and selectee lists. It broadens the authority of government officials to “nominate” people to the watchlists based on what is vaguely described as “fragmentary information.” It also allows for dead people to be watchlisted.
In January, Rahinah Ibrahim became the first person ever reported to successfully gain removal from the No Fly List. Her victory occurred after a five-day federal district court trial that was held largely in secret, at the US government’s insistence to protect “state secrets.” Bringing to mind the typographical error that puts in motion the story in the movie Brazil, it turns out Ibrahim had been added to the list in 2004 because a Federal Bureau of Investigation agent checked the wrong box on a form.
While the US government chose to force Ibrahim to proceed all the way through a long, costly, and burdensome court battle to correct the error that placed her on the No Fly List, the government has long known the list is a mess. The multi-agency FBI-administered Terrorist Screening Center that maintains the list in January 2007 determined that tens of thousands of individuals included in the No Fly List did not belong there. The TSC recommended the people instead belonged on the lower-level Selectee List that calls for greater airport harassment, but not a for sure travel prohibition, or belonged on neither list. Here is the rundown from a redacted September 2007 US Department of Justice, Office of Inspector General report:
In July 2006, the Homeland Security Council Deputies Committee issued guidance on how to correctly apply its criteria for including individuals on the No Fly list. Subsequently, the TSC submitted all TSDB [(the TSC’s consolidated terrorist screening database)] records associated with individuals who were on the No Fly list to a comprehensive quality assurance review using this guidance. When the TSC began its review in July 2006, the No Fly list contained 71,872 records. The TSC completed its special review of the No Fly list on January 31, 2007, determining that the No Fly list should be reduced to 34,230 records.15 The TSC recommended 22,412 records for removal from the No Fly list and placement on the TSA’s Selectee list.16 For another 5,086 records, the TSC determined that the individual did not require inclusion on either the No Fly or Selectee list.The current size of the No Fly List is not publicly available. According to an Associated Press article from February 2012, the names on the No Fly List more than doubled from 10,000 a year earlier to 21,000, including 500 Americans, around the time of the article’s publication.
Whatever the number of names now on the No Fly List and the airport “enhanced” harassment guaranteeing Selectee List, the lack of anything approaching due process in the determination of who is on the lists and in how the lists are used to deprive respect for individual rights guarantees that many people in addition to Ibrahim are being harassed and denied the ability to exercise their rights for no good reason. Given the US government’s entirely shoddy and unjust No Fly and Selectee Lists system, the presumption should be that everyone, such as poet and journalist Nasser, who is singled out for special harassment at an airport or is barred from a flight is a victim of rights violations by a government bureaucracy operating in absolute violation of individual rights and constitutional constraints.
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