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ACLU sues over government's ‘no-fly’ list

The ACLU filed a class-action suit on Tuesday challenging the constitutionality of the government's "no-fly" list.
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A minister, master sergeant, lawyer, naturalized citizen, student and non-profit director are the public faces of a class action suit challenging the constitutionality of the government’s secret “no fly” list that bans persons considered to be a threat to aviation from boarding commercial airliners.

The so-called “no fly” list was developed after 9/11 and is administered by the Transportation Security Administration in cooperation with the airlines.  The list comes into play when a person steps up to a ticket counter to purchase a ticket or get a boarding pass.  People with names matching those on the list are automatically flagged for “enhanced security” processing.

However, the system is flawed, says the American Civil Liberties Union, which filed the suit Tuesday.  The ACLU contends that the technology behind the no-fly list snags an unknown number of people in a kind of identity miss-match, flagging law abiding citizens as suspected terrorists.

“This is a case about innocent people who found out their government considers them potential terrorists,” said Reginald Shuford, the lead ACLU attorney in the case.  “For our clients and thousands like them, getting on a plane means repeated delays and the stigma of being singled out as a security threat in front of their family, their fellow passengers and the flight crew,” Shuford said.

The ACLU is asking the court to declare the no-fly list in violation of a person’s rights to freedom from unreasonable search and seizure and to due process under the Fourth and Fifth amendments to the Constitution.

The TSA declined to comment directly on any pending litigation, but acknowledged, “It points to a very clear fact: We need to advance to the next generation of passenger pre-screening,” said TSA Spokesman Mark Hatfield.  “We’re operating with a limited, inherited system that was designed in a different age to deal with a different threat,” Hatfield said.

A replacement, dubbed CAPPS II, has stalled as the TSA scrambles to implement several requirements mandated by Congress to ensure the new, more powerful screening system doesn’t violate privacy rights and provides a clear, unambiguous way for people to have their names removed if they have been unfairly tagged as a security risk.

Hatfield vouched for the integrity of the no-fly list, saying “the list isn’t the problem. …  I’m confident in its accuracy and the rules that govern its construct.”  But, he added, "we have an outdated, limited system that lacks an identify verification component,” something CAPPS II will have.

In addition to there being no way for a person to have his or her name cleared from the no-fly list under the current system, the TSA will not say how or why a certain name is showing up on the list in the first place, Shuford said.

There’s another list, dubbed the “selectee” list, which runs in parallel with the no-fly list.  Those tapped by the selectee list are subjected to more intense screening prior to boarding the aircraft but are not banned from flying altogether.

Threatened, harassed, detained
Among those joining the class-action suit Tuesday was John Shaw, a retired Presbyterian minister.  Shaw said he first discovered his name was on the no-fly list in mid-2002 when he and his wife were flying out of Seattle to Oregon.  When he had trouble at the ticket counter getting his boarding pass, he was told that his name “was on an FBI list.”  Several other times Shaw's tickets have been invalidated, making travel difficult. 

When Shaw called the local FBI office he was told the bureau didn’t maintain the list and to call the TSA instead.  Shaw said he filled out all the required paperwork with the agency to get a clearance letter but “I have yet to receive a response from the TSA.”

ACLU attorney David Fathi also is among those joining the suit.  Fathi said he has been stopped from boarding planes at least five times and once at a border crossing, though in each instance he was eventually able to clear up the mistake and continue on his way.

“But try explaining that to your fellow airline passenger after you have been stopped, searched and interrogated in front of them,” Fathi said.  “Even after obtaining a letter from the TSA stating that my identity had been verified, I am still subject to delays, enhanced searches, detentions and other travel impediments, all due to the no-fly list,” he said.

But it doesn’t happen every time he tries to fly. "Sometimes I have a completely uneventful experience,” Fathi said.  “Other times I have been led away by police.  I have been threatened by indefinite detention."

I've had one officer tell another to put me in handcuffs and take me away,” he said.  Such inconsistent application of the list, “shows how deeply flawed the system is,” Fathi said.

The inconsistency comes, said TSA’s Hatfield, because passenger pre-screening “is being administered by scores of different airlines at thousands of ticket counters across the nation” and there are no standards for how that’s being accomplished.

The TSA does have an apply process that allows travelers to obtain a kind of clearance letter from the agency.  But the letter apparently holds little weight at airports; even people with such letters from the TSA continue to be stopped, the ACLU said. 

According to the suit, the TSA clearance letter contains the following qualifier:  “While TSA cannot ensure that your travel will be delay-free, these procedures should streamline your check-in process.  Please note that you may still experience enhanced screening at security screening locations.”

For one particular group of men who have come to be known as “David Nelsons,” the no-fly list situation long ago moved from an embarrassment to a never-ending irritation. Tales of embarrassing encounters at airports from coast to coast involving dozens of “David Nelson’s” being pulled aside for additional security inspections are so well documented that it's become something of a running joke with nightclub comedians.

“Neither my name nor my story is unique,” said David Nelson, a St. Louis attorney and plaintiff in the ACLU suit.  “Happily, we David Nelsons have kept our sense of humor,” he said, citing the fact that even the David Nelson that starred in the '50s-'60s sitcom “The Adventures of Ozzie and Harriet” has been stopped at airports.

“A pair of comedians in Portland, Ore., wrote a song about us,” he said.  While the song may be amusing, “what’s not so funny is being questioned by police in front of my children,” he said.

Many unknowns
The ACLU had no immediate recommendation for how to fix the situation.  “We don’t know enough about how the system works to even begin to suggest a remedy,” Shuford said.

Shuford said the ACLU didn’t reach for the blunt instrument of legal action as its first course of action.  “We’ve tried to deal with the TSA,” he said, “but they have refused to cooperate.” 

There is little known about the no-fly list; even the number of people on it is a secret.  However, some tidbits have surfaced and are contained in the ACLU’s filing:

  • As of April 8, 2003, San Francisco International Airport had reported 339 passengers had been flagged due to the no-fly list and subjected to extra security screening.
  • Oakland Airport reported that as of May 19, 2003, the no-fly list was 88 pages long.
  • TSA documents acknowledge that during December 2002, the agency received 30 calls per day from airlines regarding “false positives” on the no-fly list.