A Radical Proposal for Airline Security

It's time to abolish the no-fly list

If a job not worth doing is going to be done anyway, better for it to be done well than badly. So the Transportation Security Administration deserves credit for its Secure Flight program, aimed at curbing mistakes on its no-fly list. The American Civil Liberties Union, likewise, warrants praise for suing on behalf of travelers who were wrongly snared.

But there is a better option that would eliminate this problem, as well as others: Get rid of the no-fly list entirely. For that matter, get rid of the requirement that passengers provide government-approved identification just to go from one place to another.

Americans have a constitutionally protected right, recognized by the Supreme Court, to travel freely. They also have the right not to be subject to unreasonable searches and other government intrusions. But in the blind pursuit of safety, we have swallowed restrictions on travel and infringements on privacy we would never tolerate elsewhere.

The no-fly list is a punishment in search of a crime. As Richard Sobel, a director of the Cyber Privacy Project and a scholar at Northwestern University, points out, it inflicts a penalty without a trial or any other form of due process.

The TSA doesn't say what it takes to get on the list, and it doesn't make it crystal clear how to get off. If it acts in an arbitrary or malicious way, the victim has little recourse except appealing to the agency's better angels.

But the whole idea behind the list doesn't make much sense. Supposedly, we have hundreds or even thousands of U.S. residents who are too dangerous to be allowed on a plane—but safe enough to be trusted in all sorts of other places (subway trains, sports venues, shopping malls, skyscrapers) where someone carrying a bomb or a gun could wreak havoc.

If those on the list are truly dangerous, the government should arrest and prosecute them, with their guilt decided by courts. If they are not dangerous enough to arrest, they should have the same freedom to travel as everyone else.

We don't prohibit all ex-convicts from flying. How can we justify barring people convicted of nothing?

But there is a broader problem. If the federal government began requiring every citizen to provide identification for each trip in a car or ride on a bus, there would be a mass uprising. Somehow, though, Americans have come to see commercial air travel as a privilege to be dispensed by the government.

It was not always so. Not so many years ago, Sobel notes, you could show up without a reservation or a ticket at Washington's National Airport (now Reagan National Airport), walk onto the hourly shuttle to LaGuardia, take a seat and pay your fare in cash. No one knew who you were, and no one cared.

But in 1995, Washington mandated that all travelers show government-approved identification before boarding a flight. The freedom to travel without federal permission was gone. The no-fly list further limited that liberty.

After 9/11, the requirement served the purpose of helping keep violent fanatics off airliners. What no one seems to notice is that other improvements in security have made this one a needless burden.

The government required airlines to install reinforced cockpit doors to keep hijackers from taking the controls. It tightened security rules—banning penknives, lighters, ski poles, snow globes, and liquids except in tiny bottles.

It initiated random pat-downs of travelers and gave extra scrutiny to those who did suspicious things. It deployed thousands of armed air marshals.

Equally important, travelers changed their mindset, meaning that terrorists can no longer count on passive victims. On several occasions—starting with United Flight 93 on 9/11—passengers have acted to foil attacks.

With all these layers of protection in place, the rationale for the no-fly list has crumbled. Even if someone on the list can get on a plane, his chance of taking it over or bringing it down is very close to zero. And you know the other good thing? The same holds for an aspiring terrorist who doesn't make the list.

The government's tedious insistence on identifying all travelers and grounding some may convey an illusion of security. But we could live—and I do mean live—without it.

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