Not long after the January 6 Capitol riot, politicians began lining up to call for more laws and broader government surveillance powers. Less than a week later, soon-to-be Senate Majority Leader Sen. Chuck Schumer (D–N.Y.) held a press conference at which he proposed expanding the federal no-fly list, which bars people from boarding airplanes, to include individuals accused of participating in the riot.
"The insurrectionists who breached the U.S. Capitol fall under the definition of threats to the homeland," Schumer told news cameras, holding up a piece of paper with an image of a "no" symbol over an airplane as a visual aid. "We are calling on the authorities…to put them on the no-fly list immediately."
Schumer's recommendation was supported by other Democrats, including the chair of the House Homeland Security Committee. The FBI and Transportation Security Administration have said they are looking into the suggestion.
This is not the first time politicians have touted the no-fly list as a solution to the crisis du jour. A common refrain during the Obama administration, echoed by both major-party presidential nominees in 2016, was that people in the FBI's Terrorist Screening Database, which includes the no-fly list, should not be allowed to buy guns.
Using the list to abridge civil liberties was a bad idea then, and it's a bad idea now. The no-fly list is a civil liberties nightmare: secretive and nearly impossible to challenge.
Although it existed prior to 9/11, the list ballooned afterward, from a total of 16 people to about 4,600 U.S. citizens and lawful permanent residents as of 2017. A 2014 investigation by The Intercept found that 40 percent of the nearly 700,000 names in the broader Terrorist Screening Database were not linked to any specific terrorist group.
Because of government secrecy, false positives and other mistakes were absurdly hard to fix. Such was the case with Rahinah Ibrahim, a doctoral candidate attending Stanford University on a student visa. She ended up on the no-fly list in 2004 after an FBI agent checked the wrong box on some paperwork. At the time, the government had a policy of refusing to confirm or deny a person's watch-list status, putting Ibrahim in the position of trying to challenge a program that she could not prove affected her.
It took Ibrahim a decade to get off the no-fly list. In 2014, she became the first person to mount a successful challenge. Around the same time, the American Civil Liberties Union won a lawsuit challenging the list, which resulted in several concessions. The government now informs people of their status and gives them a summary of why they were added.
The legal challenges keep coming. In December 2020, the Supreme Court ruled that three Muslim men could sue several FBI agents for putting them on the no-fly list in retaliation for refusing to become informants. As Ramzi Kassem, the lawyer representing the three men, told NPR, the problem with the no-fly list is that it combines "tremendous power with a near-total lack of transparency."
The U.S. has a long, ignominious history of abridging civil liberties in times of fear and anger, and those with the fewest resources to fight back tend to bear the brunt of the government's expanded power. After the Oklahoma City bombing, Congress passed the Antiterrorism and Effective Death Penalty Act of 1996, a law that significantly limits inmates' rights to challenge their confinement through habeas corpus petitions. Just last year, the Voice of San Diego reported that city police were still using a municipal code enacted during World War I to issue tickets for "seditious language."
Along with expanding the no-fly list, lawmakers and pundits floated other ideas in the wake of the Capitol riot, including a new domestic terrorism statute. Existing laws are more than adequate to handle the Capitol rioters or anyone else who commits crimes against people or their property. Adding another level of illegality would give the government yet more leverage over unpopular defendants.
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