Terrorism

We Can Tell You That You Can't Fly; We Can't Tell You Why

The government resists divulging the reasons for stripping people of the right to travel by air.

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xlibber/Flickr

Last year, in response to an ACLU-sponsored lawsuit, U.S. District Judge Anna Brown ordered the federal government to create an appeals process for people placed on the "no fly" list that prevents travelers from boarding flights to, from, within, or across the United States. Last spring the Department of Homeland Security began telling travelers barred from flying whether they were on the list and, if so, informing them of their right to initiate a "redress inquiry." But it's hard to get off the list if you don't know why you were put there to begin with, and the government says it can't be specific because that would endanger national security.

"By its very nature, identifying individuals who 'may be a threat to civil aviation or national security' is a predictive judgment intended to prevent future acts of terrorism in an uncertain context," two Justice Department officials say in a May 28 brief quoted by Spencer Ackerman in The Guardian. "Judgments concerning such potential threats to aviation and national security call upon the unique prerogatives of the Executive in assessing such threats." In other words: We know what we're doing; you'll just have to trust us.

The government says the standard for being placed on the no-fly list is "reasonable suspicion," which is weaker than the "probable cause" required for an arrest or a search warrant. As the Supreme Court explained in the 1968 case Terry v. Ohio, reasonable suspicion is more than an "inchoate and unparticularized suspicion or 'hunch.'" It is supposed to be based on "specific and articulable facts…taken together with rational inferences from those facts." 

What that means in practice is anybody's guess. Terry, which involved brief detentions and pat-downs of people believed to be involved in criminal activity and possibly armed, was the legal basis for New York City's widely criticized stop-and-frisk program, which correctly identified lawbreakers 12 percent of the time and correctly identified people with weapons 2 percent of the time. Given how rare terrorist attacks on airplanes are, the no-fly list is likely to be considerably less accurate at identifying people hatching such schemes. The Associated Press says the list includes "tens of thousands of people." Last Friday the ACLU told Judge Brown the government's predictive methods are subject to an "extremely high risk of error."

That question is pretty hard to assess, since it hinges on counterfactual speculation about what people might have done if they had been allowed on airplanes. But the plaintiffs in the ACLU suit would at least like to know the sort of evidence the government uses to arrive at its supposedly reasonable suspicions. Is it "details about an airline passenger's friendships, travels, [and] financial transactions," as A.P. suggests? Ackerman cites a leaked internal document that says social media posts are one acceptable source of evidence, and he notes that some Muslims have complained they suddenly appeared on the no-fly list after declining to become FBI informants.

One thing is clear: People barred from flying need not have been charged with any offenses related to terrorism, let alone convicted. An arrest, after all, requires probable cause. For the most part, it seems, people get on the list not because of what they've done but because of what they might do.

The DOJ allows that picking people for the list "requires predictive assessments about conduct that may or may not occur in the future." The government says it can't say much more than that, however, because divulging the criteria for the no-fly list would help terrorists avoid detection. "If the Government were required to provide full notice of its reasons for placing an individual on the No Fly List and to turn over all evidence (both incriminating and exculpatory) supporting the No Fly determination," an FBI official told Brown, "the No Fly redress process would place highly sensitive national security information directly in the hands of terrorist organizations and other adversaries."

But if you don't know why you are on the no-fly list, it is pretty hard to argue that you should be removed, which renders meaningless the appeals process that Brown said is constitutionally required. Another problem: So far the government is insisting that the director of the Transportation Security Administration must have the final word on who deserves the right to travel by air.

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  1. I’m going to launch a zeppelin travel service for people who can’t fly on planes. Called ?bermenschen.

  2. “By its very nature, identifying individuals who ‘may be a threat to civil aviation or national security’ is a predictive judgment intended to prevent future acts of terrorism in an uncertain context,”

    A long winded way to say, “We just guess.”

    1. Why we don’t simply render all passengers unconscious for the duration of the flight is beyond me. Another benefit to this plan, besides increased security, is that we could cram in many more passengers on each plane. This would increase per-plane profitability and lower the price of tickets. Win-win-win.

      1. Plus,. I don’t have to listen to the goober next to me go on and on for the whole flight about how the Cleveland Browns have let him down for the last time…

      2. Please don’t give those assholes any ideas.

    2. It becomes increasingly clear with each reported event that the No-fly List is much more punitive than preventative. I am all but certain that is by design.

  3. And the unique prerogatives of the Executive has a much greater Newspeak cachet than FYTW.

    1. That wouldn’t be such a galling statement if they admitted to any prerogative that doesn’t fall under the purview of the executive.

      1. Glad to know that you have plenty of room within which to expectorate your expectorant.

        1. Nothing’s classier than chawing in public.

          1. I agree, but tell that to Curt Schilling or, better yet, Joseph Henry “Joe” Garagiola (89 and still ticking…but not chawing).

  4. MAXIMUM SAFETY

  5. Helium?
    Bah! Upsydaisyum is where it’s at.

    1. How about a vacuum with superamazingtum to form the rigid shell?

      1. You’re all left in the dust with my new Happy Fun Ball craft.

    2. Cavorite, dude, cavorite.

  6. Quote 1:

    U.S. District Judge Anna Brown ordered the federal government to create an appeals process for people placed on the “no fly” list

    Quote 2:

    The government says the standard for being placed on the no-fly list is “reasonable suspicion,”

    Attempting to appeal will almost certainly be construed as “reasonable suspicion” by the TSA. Infinite loop of appeals.

  7. Well, I suppose we can’t really expect the government stooges to stand up in court and say “We denied this person his right to travel by air because we are self-important assholes.”

    1. I think the real issue is that the government isn’t prepared to stand up and say “We put this guy on the no fly list because of some troubling correspondence of his that we illegally scooped up.”

    2. Which is pretty much how I got on the No Fly List. Some asshole at the FBI objected to my comparison of George Bush et al to Death Eaters.

      1. Bush the younger, I assume?

        The older one wasn’t that bad ( at least compared to his son) .

      2. Did you explain to them that you were not that guy?

  8. If you aren’t allowed to fly for no good reason just take your lumps so the rest of us can enter the clouds blissfully free from anxiety. Delusion is very important to us Americans, punk, so don’t fuck with the system.

  9. As someone who was assigned to work for longer than I care to admit in one of those “secret prisons” you hear about, this is an issue near to my heart. Anyone who shrugged when it was revealed that detainees in American black facilities were denied access to representation, their own dossiers, and even the charges (if any: in the vast majority of cases, there were none) against them?due solely to national security concerns?has little room to complain now that these foul chickens are coming home to roost and the same rationales are being used to fuck over American citizens. National security should never be an acceptable excuse for denying anyone due process guaranteed to them by the Constitution.

    Then again, I personally believe it should be extremely hard to classify information and that any information classified should be promptly declassified within a year or two?five years at the very outside?but that’s a topic for another discussion. That some knowledge from as far back as the World War II era remains classified to this day is unconscionable to me.

  10. OT: One for the “No Shit, Sherlock” department:

    http://finance.yahoo.com/news/…..00216.html

    “What we’re talking about is a penalty for the few people who will refuse to buy health insurance ? even though they can afford it ? and who expect the rest of us to pick up the tab for their care,” a September 2009 White House defense of the individual mandate states.

    Six years later, the harsh reality is coming into focus: The mandate’s primary impact will be to compel low-income households to buy bronze coverage with deductibles of up to $6,850 per adult that are well beyond their capacity to afford. Because any semiserious health issue will torpedo their finances long before ObamaCare begins to pay the bills, this situation raises a question of whether it is ethical to threaten them with a mandate penalty.

    In addition, after two years of ObamaCare enrollment, it now appears likely that this contradiction ? the Affordable Care Act mandating unaffordable care ? will be the rule, not the exception, for modest-income households between 150% and 250% of the poverty level.

    1. That’s why Obama said insurance companies are the only ones who are gonna hate ACA.

    2. !&*^#$^%& ACA has driven my premiums and deductible thru the roof. I don’t mind a high deductible, in fact I prefer it. But I shouldn’t have to pay 70% more in premiums than I did before for a deductible that’s twice as large.

    3. In other words, Obama is fucking over the people who put him in office.

      There’s a certain perverse justice to seeing those who demanded that the Feds steal to give them free shit end up being the ones who were stolen from.

      Enjoy it, kids!

  11. since when in recent times do you have to commit a crime to have your rights stripped away? Since when does a country have to actually threaten with belligerence before it is invade? Where have you been living?
    Guilty of being suspicious is guilt. Amirite?

    1. Judge Nap? Zat you?

    2. since when in recent times do you have to commit a crime to have your rights stripped away?

      I guess in the time before the legal principles of maritime law were codified into the statutory law of the land.

      1. They’re more what you’d call guidelines, than actual rules. Arrr.

  12. the unique prerogatives of the Executive

    Ready for Hillary?

  13. The DOJ allows that picking people for the list “requires predictive assessments about conduct that may or may not occur in the future.”

    So: precrime or crimethink or both.

    Minority Report without the predictive accuracy.

    1. Of course the precogs in Minority Report were not accurate, they were always wrong since the crimes they foresaw never actually occurred.

  14. Do we still differentiate between rights and privileges? Not sure of the amendment guaranteeing the right to ‘travel by air.’

    1. freedom to assemble… on a plane

      1. with snakes?

  15. AFAIK, one can still charter a plane. Or hike.

  16. Too dangerous to fly, but not too dangerous to just roam around by other means. Makes absolutely no sense.

  17. some Muslims have complained they suddenly appeared on the no-fly list after declining to become FBI informants

    All in a day’s work for J. Edgar Hoover’s TOP MEN.

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  19. What we need is for the hackers who got into OPM to take all the LE and SES names in that data and to hack them IN to the TSA NO FLY LIST.
    If the way to rid ourselves of the NoFlyList is to put everyone of consequence in it, so be it.

  20. If you aren’t allowed to fly for no good reason just take your lumps so the rest of us can enter the clouds blissfully free from anxiety. Delusion is very important to us Americans, punk, so don’t fuck with the system.

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