Why the No-Fly List Doesn't Fly
Innocent people don't know why they're on it and get off
Flying commercial can be a terrible hassle these days, but not for Steven Washburn. The people in charge of airport security have decided to spare him all the inconveniences. No taking off his shoes and belt, no putting his liquids in a plastic bag, no enduring a naked body scan. Oh, and one more thing: no flying.
Washburn is on the government's no-fly list. He doesn't know why, and the government won't tell him. Nor will it take him off. He's much like Franz Kafka's Gregor Samsa, who wakes up to find he has turned into a bug. There is no accounting for it and no escape. He may go to the grave without ever flying again — or learning the reason.
He's just one of the many people tabbed as potential terrorists who must be kept off the nation's airliners, including, at one point, Sen. Edward Kennedy, D-Mass. An estimated 21,000 people now populate the no-fly list.
That number alone should raise serious questions about its accuracy. Since Sept. 11, 2001, there is no known instance of the Transportation Security Administration catching a terrorist trying to board a plane.
Remember all those sleeper cells of al-Qaida operatives, waiting for the right moment to strike? They never turned up either. Since 9/11, the number of terrorist attacks in the United States amounts to 127. If you believe there are 21,000 fanatics itching to blow up a regional jet, I have some Mitt Romney inauguration tickets to sell you.
But none of this is any comfort if you're one of the unfortunates who are not free to move about the country — or out of it. So the American Civil Liberties Union has gone to court on behalf of 13 people (including four military veterans) who had flown for years only to show up at the airport and find themselves persona non grata. Each petitioned the Department of Homeland Security to be removed from the no-fly list — and each was rebuffed without explanation.
The ACLU is not dreaming big here. It doesn't ask that the government take these individuals off the list. It doesn't insist that they be exempt from monitoring. The only request is that they be told why they are deemed so dangerous and have the chance to show why they really aren't.
Being on the no-fly list is not a trivial matter. It prevents Washburn from seeing his wife, a Spanish citizen who lives in Ireland. Some people never fly. But for anyone who does so even occasionally, it is a serious burden to be told: You can drive, or you can stay home.
The "right to travel" is not just a pleasant notion; it's a constitutional guarantee. Although it's not mentioned in the text, the Supreme Court has long treated it as thunderously obvious. In 1900, it said that "the right to remove from one place to another according to inclination is an attribute of personal liberty" firmly "secured by the Fourteenth Amendment and by other provisions of the Constitution."
The document also guarantees the right of due process, which those on the no-fly list can only dream about. The decision is made in secret by unseen officials who provide no reasons, entertain no disputes and allow no independent review. You could get a fairer hearing from a crowd toting tar and feathers.
This is only one of the defects in the system. A bigger one is why the list is needed at all. Since the 9/11 hijackings, various steps have been taken to prevent a repetition —reinforcing cockpit doors, putting thousands of armed marshals on flights, screening liquids and patting down travelers. Passengers, meanwhile, will no longer sit quietly if someone becomes a problem.
The Transportation Security Administration feels so confident about its ability to defuse genuine risks that it's decided to allow small knives on board aircraft. But if the government can keep troublemakers from employing the weapons they need, the troublemakers will have only pitifully ineffectual options — which means they aren't likely to fly in the first place.
The nice thing about these other security measures is that they work not only against anyone who is deemed dangerous but also anyone who is not. And they impede the guilty without inflicting serious harm on the innocent.
Maybe the people who compile the no-fly list can say the same thing. But I don't really want to take their word for it. If Ted Kennedy were around, he wouldn't either.
