U.S. 'No-Fly' List Curtails Liberties

Intended as a counterterrorism tool, it doesn't work and tramples on travelers' rights

  • Bruce Schneier
  • Newsday
  • August 25, 2004

Imagine a list of suspected terrorists so dangerous that we can’t ever let them fly, yet so innocent that we can’t arrest them – even under the draconian provisions of the Patriot Act.

This is the federal government’s “no-fly” list. First circulated in the weeks after 9/11 as a counterterrorism tool, its details are shrouded in secrecy.

But, because the list is filled with inaccuracies and ambiguities, thousands of innocent, law-abiding Americans have been subjected to lengthy interrogations and invasive searches every time they fly, and sometimes forbidden to board airplanes.

It also has been a complete failure, and has not been responsible for a single terrorist arrest anywhere.

Instead, the list has snared Asif Iqbal, a Rochester businessman who shares a name with a suspected terrorist currently in custody in Guantanamo.

It’s snared a 71-year-old retired English teacher. A man with a top-secret government clearance. A woman whose name is similar to that of an Australian man 20 years younger. Anyone with the name David Nelson is on the list. And recently it snared Sen. Ted Kennedy, who had the unfortunate luck to share a name with “T Kennedy,” an alias once used by a person someone decided should be on the list.

There is no recourse for those on the list, and their stories quickly take on a Kafkaesque tone. People can be put on the list for any reason; no standards exist. There’s no ability to review any evidence against you, or even confirm that you are actually on the list.

And, for most people, there’s no way to get off the list or to “prove” once and for all that they’re not whoever the list is really looking for. It took Kennedy three weeks to get his name off the list. People without his political pull have spent years futilely trying to clear their names.

There’s something distinctly un-American about a secret government blacklist, with no right of appeal or judicial review. Even worse, there’s evidence that it’s being used as a political harassment tool: environmental activists, peace protesters, and anti-free-trade activists have all found themselves on the list.

But security is always a trade-off, and some might make the reasonable argument that these kinds of civil- liberty abuses are required if we are to successfully fight terrorism in our country. The problem is that the no-fly list doesn’t protect us from terrorism.

It’s not just that terrorists are not stupid enough to fly under recognized names. It’s that the very problems with the list that make it such an affront to civil liberties also make it less effective as a counterterrorist tool.

Any watch list where it’s easy to put names on and difficult to take names off will quickly fill with false positives. These false positives eventually overwhelm any real information on the list, and soon the list does no more than flag innocents – which is what we see happening today, and why the list hasn’t resulted in any arrests.

A quick search through an Internet phone book shows 3,400 T Kennedys living in the United States. Adding “T Kennedy” to the no-fly list is irresponsible, especially since it was known to be an alias.

Even worse, this behavior suggests an easy terrorist tactic: Use common American names to refer to co-conspirators in your communications. This will make the list even less effective as a security tool, and more effective as a random harassment tool. There might be 3,400 T Kennedys in the United States, but there are 54,000 J. Browns.

Watch lists can be good security, but they need to be implemented properly. It should be harder than it currently is to add names to the list. It should be possible to add names to the list for short periods. It should be easy to take names off the list, and to add qualifiers to the list. There needs to be a legal appeals process for people on the list who want to clear their name. For a watch list to be a part of good security, there needs to be a notion of maintaining the list.

This isn’t new, and this isn’t hard. The police deal with this problem all the time, and they do it well. We do worse identifying a potential terrorist than the police do identifying crime suspects. Imagine if all the police did when having a witness identify a suspect is ask whether the names “sound about right”? No suspect picture book. No lineup.

In a country built on the principles of due process, the current no-fly list is an affront to our freedoms and liberties. And it’s lousy security to boot.

Categories: Airline Travel, National Security Policy

Sidebar photo of Bruce Schneier by Joe MacInnis.