The TSA and the No-Fly List Lack Accountability, Transparency

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*CORRECTION: The Council on American Islamic Relations (CAIR) is not counsel in the suit of a constitutional challenge to the U.S. government’s No Fly List procedures in the federal district court in Oregon. Updated 2/20/13.

On September 11, 2001, it was clear that air-travel could be used to harm innocent people. Congress responded by creating the Transportation Security Administration (TSA) on November 19, 2001.

As part of its duties, the TSA, along with the FBI, maintain and administer certain lists and procedures to keep possible threats out of American skies. According to the official TSA website, “the Transportation Security Administration (TSA) was created to strengthen the security of the nation’s transportation systems and ensure the freedom of movement for people and commerce.”

The TSA’s most powerful tool is the “No-Fly” list, that bans individuals from entering United States airspace. The FBI maintains this
no-fly list through its Terrorist Screening Center (TSC), deciding which individuals will be placed on the list.

The TSA then vets these listed names against the passenger lists for all commercial flights within the U.S. If a passenger’s name appears on the No-Fly list, he or she is completely prohibited from boarding an aircraft that will enter U.S. airspace.

The FBI also maintains the “Selectee-list”, that is less restrictive. This second list requires the TSA to perform certain additional screening of any passengers appearing on this list.

At least 400,000 people are on the Selectee-list, and another 10,000 or more on the No-Fly list. According to the FBI, of these 10,000, at least 500 are United States citizens. Being stopped by TSA or FBI agents while trying to board a flight appears to be the only way of knowing if your name appears on one of these lists. Tweet stats:

Once placed on either list, it can be difficult for a person to have his or her name removed, much less discover why he or she was placed on the list. The FBI maintains that releasing any information regarding people on these lists could cause serious national security risks. This policy, however, has led to a number of lawsuits and recurring ‘false-positives’.

A false positive is a situation where a passenger’s name or description is the same or similar to another individual on a restrictive list. While false positives are infrequent, several have been publicly embarrassing for the TSA.

The most famous false positive involves the deceased Senator Ted Kennedy.  In March 2004, Mr. Kennedy was stopped and asked additional screening questions at least five different times.

According to the TSA and Senator Kennedy, he was stopped because his name was similar to a ‘T. Kennedy’ on the Selectee list. Only after the Secretary of Homeland Security (the Department controlling the TSA), Tom Ridge, personally stepped in and Senator Kennedy’s name was removed from the list.

Many individuals on these lists, however, lack the political power of Mr. Kennedy and frequently face much harsher consequences as a result. A few individuals in the travel industry have even lost their jobs after being barred from traveling, while others have been de facto exiled for extended periods of time.

A U.S. citizen was stranded in Germany for at least seventeen days after being informed he was on the No-Fly list. This individual received no explanation for why his name was placed on this list and was denied help from the American Embassy.

U.S. citizen Kevin Iraniha was barred from boarding a U.S. bound flight from Costa Rica. Mr. Iraniha had the opportunity to speak with FBI agents, who told him, “you’re an American citizen, so you have the right to go into America, you just can’t fly into America, so if you want you can take a boat or you can go by land — drive into America.”

Mr. Iraniha eventually made it back to America, but only after he traveled to Tijuana and walked over the Mexican-American international border.

These examples highlight two unique problems with these lists:

First, an individual receives no warning or notice his or her name has been placed on one of these lists until an agent prohibits them from flying or subjects them to additional screening. The individual also has no opportunity to hear the evidence against them that caused his or her name to be placed on this list.

Second, even if an individual does represent a real potential threat to this country, he or she is not barred from entering the country or traveling within its borders.  The individual is only prevented from flying within U.S. airspace. This leaves numerous modes of transportation open to potential terrorist threats.

Until recently, the first problem had largely been kept out of the federal court system. Only after a Ninth Circuit Court of Appeals case have courts even been allowed to decide on these issues.

The American Civil Liberties Union (ACLU) is currently awaiting suit in an Oregon district court. The ACLU represents 13 plaintiffs, four of whom are U.S. military veterans, seeking either to remove their names from the No-Fly list or to at least receive an explanation as to why their names have been placed on the lists in the first place. Share the news:

The government faces a constant balancing act, weighing the importance of providing people the basic liberty to travel, against the importance of keeping those same people safe. The TSA and the no-fly list attempt to keep a watchful eye for terrorist activities.

However, the TSA should also be held accountable if and when it infringes on a citizen’s personal liberties and freedom. It is still unclear what will become of the TSA’s and the FBI’s power over use of these lists, but as cases are settled in federal courts, more transparency and accountability of these lists and the procedures behind them are likely to occur.