No Fly List

The No Fly List is a list, created and maintained by the United States government's Terrorist Screening Center (TSC), of people who are prohibited from boarding a commercial aircraft for travel in or out of the United States. The list has also been used to divert aircraft, not flying to or from the U.S, away from U.S. airspace. The number of people on the list rises and falls according to threat and intelligence reporting. There were 10,000 names on the list in 2011, 21,000 in 2012, and 47,000 in 2013.

The list—along with the Secondary Security Screening Selection, which tags would-be passengers for extra inspection—was created after the September 11 attacks in 2001. The No Fly List, the Selectee List and the Terrorist Watchlist were created by the administration of George W. Bush and retained by the administration of Barack Obama. U.S. Senate Intelligence Committee Chairwoman Dianne Feinstein (D-CA) said in May 2010: "The no-fly list itself is one of our best lines of defense."^[1] However, the list has been criticized on civil liberties and due process grounds, due in part to the potential for ethnic, religious, economic, political, or racial profiling and discrimination. It has also raised concerns about privacy and government secrecy. Finally, it has been criticized as costly, prone to false positives, and easily defeated.

The No Fly List is different from the Terrorist Watch List, a much longer list of people said to be suspected of some involvement with terrorism. The Terrorist Watch List contained around 1,000,000 names by March 2009.

History

Before the attacks of September 11, 2001, the U.S. federal government had a list of 16 people deemed "no transport" because they "presented a specific known or suspected threat to aviation."^[2][3] The list grew in the immediate aftermath of the September 11 attacks, reaching more than 400 names by November 2001, when responsibility for keeping it was transferred to the Federal Aviation Administration (FAA).^[3] In mid-December 2001, two lists were created: the "No Fly List" of 594 people to be denied air transport, and the "Selectee" list of 365 people who were to be more carefully searched at airports.^[2][3] By 2002, the two lists combined contained over a thousand names, and by April 2005 contained about 70,000 names.^[2] For the first two and a half years of the program, the Federal Bureau of Investigation (FBI) and Transportation Security Administration (TSA) denied that the program existed.^[2]

The No Fly List program came to public light "when prominent antiwar activists, such as Jan Adams and Rebecca Gordan, and political opponents of the Bush administration, such as Senator Edward Kennedy and the civil rights attorney David Cole, found themselves included."^[2] In October 2006, CBS News's 60 Minutes reported on the program after it obtained a March 2006 copy of the list containing 44,000 names.^[4]

Many individuals were "caught in the system" as a result of sharing the exact or similar name of another person on the list;^[5] TSA officials said that, as of November 2005, 30,000 people in 2005 had complained that their names were matched to a name on the list via the name matching software used by airlines.^[6] In January 2006, the FBI and ACLU settled a federal lawsuit, Gordon v. FBI, brought by Gordon and Adams under the Freedom of Information Act in order to obtain information about how names were added to the list.^[6] Under the settlement, the government paid $200,000 in the plaintiffs' attorneys' fees.^[7] A separate suit was brought as a class action "filed by people caught in the name game."^[5] In response, "TSA created an ombudsperson process, whereby individuals now can download and print out a Passenger Identity Verification Form and mail it, along with certain notarized documents, to the TSA "so the agency can differentiate the individual from others who may be on the list."^[5]

In April 2007, the United States government "terrorist watch list" administered by the Terrorist Screening Center, which is managed principally by the FBI,^[8] contained 700,000 records.^[9] A year later, the ACLU estimated the list to have grown to over 1,000,000 names and to be continually expanding.^[10][11][12] However, according to Homeland Security secretary Michael Chertoff, in October 2008 the No Fly list contained only 2,500 names, with an additional 16,000 "selectees" who "represent a less specific security threat and receive extra scrutiny, but are allowed to fly."^[13]

As of 2011, the list contained about 10,000 names.^[14][15] In 2012, the list more than doubled in size, to about 21,000 names.^[16] In August 2013, a leak revealed that more than 47,000 people were on the list.^[17][18]

Weapons purchases by listed persons

In a 2010 report, the Government Accountability Office noted that "Membership in a terrorist organization does not prohibit a person from possessing firearms or explosives under current federal law," and individuals on the No Fly List are not barred from purchasing guns.^[19] According to GAO data, between 2004 and 2010, people on terrorism watch lists—including the No Fly List as well as other separate lists—attempted to buy guns and explosives more than 1,400 times, and succeeded in 1,321 times (more than 90 percent of cases).^[20]

Senator Frank Lautenberg of New Jersey, a Democrat, repeatedly introduced legislation to bar individuals on the terror watch lists (such as the No Fly List) from buying firearms or explosives, but these efforts did not succeed.^[19][20][21] Dianne Feinstein of California, also a Democrat, revived the legislation after the November 2015 Paris attacks, and President Barack Obama has called for such legislation to be approved.^[19] Republicans in Congress, such as Senate Homeland Security Committee chairman Ron Johnson of Wisconsin, and Speaker of the House Paul Ryan, oppose this measure, citing due process concerns and efficacy, respectively.^[19] Republicans have blocked attempts by Democrats to attach these provisions to Republican-backed measures.^[22]

Vulnerabilities

False positives

A "false positive" occurs when a passenger who is not on the No Fly List has a name that matches or is similar to a name on the list. False positive passengers will not be allowed to board a flight unless they can differentiate themselves from the actual person on the list, usually by presenting ID showing their middle name or date of birth. In some cases, false positive passengers have been denied boarding or have missed flights because they could not easily prove that they were not the person on the No Fly List.

When an airline ticket is purchased, the reservation system uses software to compare the passenger's name against the No Fly List. If the name matches, or is similar to a name on the No Fly List, a restriction is placed in the reservation that prevents the passenger from being issued a boarding pass until the airline has determined whether or not he or she is the actual person whose name is on the No Fly List. Passengers are not told when a restriction has been placed on their reservation, and they normally do not find out that anything is unusual until they attempt to check in. "False positive" passengers cannot use Internet check-in or the automatic check-in kiosks in airports. Any attempt to use either check-in method will normally result in a message that the check-in cannot be completed and that the passenger needs to see a live check-in agent.

In order to be issued a boarding pass, "false positive" passengers must present identification that sufficiently differentiates them from the person on the No Fly List. This can include, but is not limited to, date and place of birth, middle name, citizenship, passport number, etc. Depending on the airline, this clearance can be done either electronically, with the check-in agent keying the information into the system, or a manual procedure where the agent telephones a centralized security office to obtain clearance. Once a "false positive" passenger has been cleared for a flight, the clearance will usually, but not always, apply to the remaining flights on that reservation, including the return. However, the next time this passenger purchases an airline ticket, he or she will have to be cleared all over again. If a passenger's identification is insufficient to differentiate that passenger from a name on the No-Fly List, the airline will refuse to issue a boarding pass and tell the passenger to contact the TSA.

Policies vary from airline to airline as to whether a check-in agent will tell passengers why they must always have additional steps performed when they check in, or why they are unable to check in via Internet, kiosk, or at curbside. In some cases, check-in agents will incorrectly tell passengers that they must be cleared because they are "on the No Fly List", when in fact they are simply a "false positive" (having the same name as someone on the No Fly List). False positive passengers who are ultimately issued boarding passes are not on the No Fly List. In the majority of instances, passengers are not told anything, and it is only through the repeated experience of needing to be cleared or being unable to use curbside, Internet or automatic check-in that they come to suspect that they are "false positives".

In an effort to reduce the number of false positives, DHS announced on April 28, 2008 that each airline will be permitted to create a system to verify and store a passenger's date of birth, to clear up watch list misidentifications. Passengers can voluntarily provide this information to the airline, which would have to be verified by presenting acceptable ID at the ticket counter. Once this data has been stored, travelers that were previously inconvenienced on every trip would be able to check in online or at remote kiosks.^[23] It will be up to each individual airline to choose whether they wish to implement such a system.

Notable cases

False positives and abuses that have been in the news include:

• Numerous children (including many under the age of five, and some under the age of one) have generated false positives.^[24][25][26]
• Daniel Brown, a United States Marine returning from Iraq, was prevented from boarding a flight home in April 2006 because his name matched one on the No Fly List.^[27]
• David Fathi, an attorney for the ACLU of Iranian descent and a plaintiff in an ACLU lawsuit, has been arrested and detained because his name was on the No Fly List.^[28]
• Asif Iqbal, a management consultant and legal resident of the United States born in Pakistan, plans to sue the U.S. government because he is regularly detained when he tries to fly. He has the same name as a former Guantanamo detainee.^[29][30] Iqbal's work requires a lot of travel, and, even though the Guantanamo detainee has been released, his name remains on the No Fly List, and Iqbal the software consultant experiences frequent, unpredictable delays and missed flights.^[31] He is pushing for a photo ID and birthdate matching system, in addition to the current system of checking names.^[32]
• Robert J. Johnson, a surgeon and a former lieutenant colonel in the U.S. Army, was told in 2006 that he was on the list, although he had had no problem in flying the month before. Johnson was running as a Democrat against U.S. Representative John McHugh, a Republican. Johnson wondered whether he was on the list because of his opposition to the Iraq War. He stated, "This could just be a government screw-up, but I don't know, and they won't tell me."^[33] Later, a 60 Minutes report brought together 12 men named Robert Johnson, all of whom had experienced problems in airports with being pulled aside and interrogated. The report suggested that the individual whose name was intended to be on the list was most likely the Robert Johnson who had been convicted of plotting to bomb a movie theater and a Hindu temple in Toronto.^[4]
• In August 2004, Senator Ted Kennedy (D-MA) told a Senate Judiciary Committee discussing the No Fly List that he had appeared on the list and had been repeatedly delayed at airports. He said it had taken him three weeks of appeals directly to Homeland Security Secretary Tom Ridge to have him removed from the list. Kennedy said he was eventually told that the name "T Kennedy" was added to the list because it was once used as an alias of a suspected terrorist. There are an estimated 7,000 American men whose legal names correspond to "T Kennedy". (Senator Kennedy, whose first name was Edward and for whom "Ted" was only a nickname, would not have been one of them.) Recognizing that as a U.S. Senator he was in a privileged position of being able to contact Ridge, Kennedy said of "ordinary citizens": "How are they going to be able to get to be treated fairly and not have their rights abused?"^[34] Former mayor of New York City Rudy Giuliani pointed to this incident as an example for the necessity to "rethink aviation security" in an essay on homeland security published while he was seeking the Republican nomination for the 2008 presidential election.^[35]
• U.S. Representative, former Freedom Rider, and Chairman of SNCC John Lewis (politician) (D-GA) has been stopped many times.^[36]
• Canadian journalist Patrick Martin has been frequently interrogated while traveling, because of a suspicious individual, believed to be a former Provisional Irish Republican Army bomb-maker, with the same name.^[37][38]
• Walter F. Murphy, McCormick Professor of Jurisprudence at Princeton, reported that the following exchange took place at Newark on 1 March 2007, where he was denied a boarding pass "because I [Murphy] was on the Terrorist Watch list." The airline employee asked, "Have you been in any peace marches? We ban a lot of people from flying because of that." Replied Murphy, "I explained that I had not so marched but had, in September 2006, given a lecture at Princeton, televised and put on the web, highly critical of George Bush for his many violations of the constitution." To which the airline employee responded, "That'll do it."^[39]
• David Nelson, the actor best known for his role on The Adventures of Ozzie and Harriet, is among various persons named David Nelson who have been stopped at airports because their name apparently appears on the list.^[40][41]
• Jesselyn Radack, a former United States Department of Justice ethics adviser who argued that John Walker Lindh was entitled to an attorney, was placed on the No Fly List as part of what she ^[42] believes to be a reprisal for her whistle-blowing.
• In September 2004, former pop singer Cat Stevens (who converted to Islam and changed his name to "Yusuf Islam" in 1978) was denied entry into the U.S. after his name was found on the list.^[43]
• In February 2006, U.S. Senator Ted Stevens (R-AK) stated in a committee hearing that his wife Catherine had been subjected to questioning at an airport as to whether she was Cat Stevens due to the similarity of their names.^[40][44]
• U.S. Representative Don Young (R-AK), the third-most senior Republican in the House, was flagged in 2004 after he was mistaken for a "Donald Lee Young".^[45]
• Some members of the Federal Air Marshal Service have been denied boarding on flights that they were assigned to protect because their names matched those of persons on the no-fly list.^[46]
• In August 2008, CNN reported that an airline captain and retired brigadier general for the United States Air Force has had numerous encounters with security officials when attempting to pilot his own plane.^[47]
• After frequent harassment at airport terminals, a Canadian businessman changed his name to avoid being delayed every time he took a flight.^[48]
• In October 2008, the Washington Post reported that Maryland State Police classified 53 nonviolent political activists as terrorists, and entered their names and personal information into state and federal databases, with labels indicating that they were terror suspects. The protest groups were also entered as terrorist organizations. During a hearing, it was revealed that these individuals and organizations had been placed in the databases because of a surveillance operation that targeted opponents of the death penalty and the Iraq war.^[49]
• In April 2009, TSA refused to allow an Air France flight from Paris to Mexico to cross U.S. airspace because it was carrying Colombian journalist Hernando Calvo Ospina. Air France did not send the passenger manifest to the US authorities; they did however send it to Mexico who forwarded it to the US.^[50]
• On 19 August 2009, flight Air-France AF 438 was not allowed to cross US airspace because of the presence on board of Paul-Emile Dupret, civil servant at the European Parliament for 18 years, who had written some articles criticizing that the EU policies toward Latin America because are to much aligned on the US ones.^[51] On 20 March 2016, Air France in Charles-De-Gaulle Airport blocked the boarding card of Dupret and suggested him to speak with a US security agent in the Airport. AF 438 did not cross US airspace, but even so Paul-Emile Dupret was not allowed to fly to Montreal and to take part in an official delegation of the European Parliament to Ottawa and Montreal.
• Bollywood actor Shah Rukh Khan was held for extensive questioning by US Immigration and Customs officials in August 2009, because as he reported, "his name came up on a computer alert list." Customs officials claimed he "was questioned as part of a routine process that took 66 minutes." Khan was visiting the United States to promote his film My Name Is Khan, which concerns racial profiling of Muslims in the United States.^[52]
• In June 2010, The New York Times reported Yahya Wehelie, a 26-year-old Muslim-American man was being prevented from returning to the United States, and trapped in Cairo. Despite Wehelie's offer to FBI agents to allow them to accompany him in the plane, while shackled, he was not permitted to return. The ACLU has argued that this constitutes banishment.^[53] In July 2010, Wehelie was permitted to fly to New York under a federal waiver.^[54]
• A U.S. citizen, stranded in Colombia after being placed on the no-fly list as a result of having studied in Yemen, sought to re-enter the U.S. through Mexico but was returned to Colombia by Mexican authorities.^[53]
• Michael Migliore, a 23-year-old Muslim convert and dual citizen of the United States and Italy, was detained in the United Kingdom after traveling there from the U.S. by train and then cruise ship because he was not permitted to fly. He said that he believes he was placed on the no-fly list because he refused to answer questions about a 2010 Portland car bomb plot without his lawyer present.^[55] He was released eight or ten hours later, but authorities confiscated his electronic media items including a cell phone and media player.^[56]
• Abe Mashal, a 31-year-old Muslim and United States Marine Veteran, found himself on the No Fly List in April 2010 while attempting to board a plane out of Midway Airport. He was questioned by the TSA, FBI and Chicago Police at the airport and was told they had no clue why he was on the No Fly List. Once he arrived at home that day two other FBI agents came to his home and used a Do Not Fly question-and-answer sheet to question him. They informed him they had no idea why he was on the No Fly List. In June 2010 those same two FBI agents summoned Mashal to a local hotel and invited him to a private room. They told him that he was in no trouble and the reason he ended up on the No Fly List was because of possibly sending emails to an American imam they may have been monitoring. They then informed him that if he would go undercover at various local mosques, they could get him off the No Fly List immediately and he would be compensated for such actions. Mashal refused to answer any additional questions without a lawyer present and was told to leave the hotel. Mashal then contacted the ACLU and is now being represented in a class-action lawsuit filed against the TSA, FBI and DHS concerning the legality of the No Fly List and how people end up on it. Mashal feels as if he was blackmailed into becoming an informant by being placed on the No Fly List. Mashal has since appeared on ABC, NBC, PBS and Al Jazeera concerning his inclusion on the No Fly List. He has also written a book about his experience titled "No Spy No Fly." ^[57]
• In November 2002 Salon reported that the No-Fly program seemed "to be netting mostly priests, elderly nuns, Green Party campaign operatives, left-wing journalists, right-wing activists and people affiliated with Arab or Arab-American groups." Art dealer Doug Stuber, who ran Ralph Nader’s Green Party presidential campaign in North Carolina in 2000, was prevented from flying to Europe on business in October 2002. He was repeatedly pulled out of line, held for questioning until his flight left, then told falsely he could take a later flight or depart from a different airport. Barbara Olshansky, then Assistant Legal Director for the Center for Constitutional Rights, noted that she and several of her colleagues received special attention on numerous occasions. On at least one occasion, she was ordered to pull her trousers down in view of other passengers.^[58]

DHS Traveler Redress Inquiry Program

The DHS Traveler Redress Inquiry Program (TRIP) is a procedure for travelers who are delayed or denied boarding of an aircraft, consistently receive excess scrutiny at security checkpoints, or are denied entry to the U.S. because they are believed to be or are told that they are on a government watch list. The traveler must complete an online application at the Department of Homeland Security website, print and sign the application, and then submit it with copies of several identifying documents. After reviewing their records, DHS notifies the traveler that if any corrections of data about them were warranted, they will be made.

Travelers who apply for redress through TRIP are assigned a record identifier called a "Redress Control Number". Airline reservations systems allow passengers who have a Redress Control Number to enter it when making their reservation.

DHS TRIP may make it easier for an airline to confirm a traveler's identity. False-positive travelers, whose names match or are similar to the names of persons on the No Fly List, will continue to match that name even after using DHS TRIP, so it will not restore a traveler's ability to use Internet or curbside check-in or to use an automated kiosk. It does usually help the airline identify the traveler as not being the actual person on the No Fly List, after an airline agent has reviewed their identity documents at check-in.

However, DHS TRIP has not been very helpful to travelers who accidentally end up on the No Fly List, as their efforts to clear their names are often futile to the extent that they are not told why they are on the list.^[59]

Lawsuits

On April 6, 2004, the American Civil Liberties Union "filed a nationwide class-action challenge to the government's No Fly List", in which they charge that "many innocent travelers who pose no security risk whatsoever are discovering that their government considers them terrorists – and find that they have no way to find out why they are on the list, and no way to clear their names."^[60] The case was settled in 2006, when "the federal government agreed to pay $200,000 in attorneys' fees to the ACLU of Northern California" and to "[make] public, for the first time, hundreds of records about the government's secret 'no fly' list used to screen airline passengers after September 11, 2001."^[6] On August 5, 2010, the ACLU filed a lawsuit on behalf of 14 plaintiffs challenging their placement on the No Fly List.^[61] and on June 24, 2014, U.S. District Judge Anna J. Brown ruled in favor of the plaintiffs saying that air travel is a “sacred” liberty protected by the U.S. Constitution^[62] and ordered the government to change its system for challenging inclusion.^[61]

A Malaysian academic has been the first to successfully bring a suit involving the No Fly List to trial. On August 18, 2008, the Ninth Circuit Court of Appeals in San Francisco issued a ruling on behalf of Rahinah Ibrahim, overturning a lower court decision and allowing her case against inclusion in the No Fly List to proceed through the court system.^[63] A public trial began on December 2, 2013 in San Francisco in the courtroom of U.S. District Judge William Alsup.^[64] The judge frequently cleared the courtroom following the requests of government lawyers (even though the judge himself once declared that the reasons "don't make much sense sometimes.")^[65] After the government revealed that Ibrahim had ended up on the list because of human error by the FBI,^[66] Alsup ruled on January 14, 2014 "that Ibrahim did have the right to sue and ordered the government to tell Ibrahim whether she is still on the list."^[67]

Gulet Mohamed, a U.S. citizen from Virginia, was placed on the no-fly list as a teenager in 2011 while he was visiting family in Kuwait. Because he was on the no-fly list, he was unable to return to the U.S. before his visa expired.^[68] He was taken into custody in Kuwait for overstaying his visa, where he alleges that he “was repeatedly beaten and tortured by his interrogators,” one of whom spoke “perfect American English.”^[69] Kuwaiti authorities tried to deport him to the U.S., but the airline denied him boarding, presumably because he was on the U.S. no-fly list, and he was returned to prison. While he was imprisoned in Kuwait, a lawsuit was filed on his behalf in the Eastern District of Virginia by the Council on American Islamic Relations. After the lawsuit was filed, he was allowed to return to the U.S.; the U.S. government then moved to dismiss the lawsuit as moot.^[70] On May 28, 2013, the 4th Circuit Court of Appeals rejected the government's motion to dismiss Mohamed's lawsuit.^[71] On January 22, 2014, Judge Anthony J. Trenga denied most of another government motion to dismiss the lawsuit, allowing the case to proceed toward trial.^[72]

Controversy

Among the complaints about the No Fly List is the use of credit reports in calculating the risk score. In response to the controversy, Transportation Security Administration (TSA) officials said in 2005 that they would not use credit scores to determine passengers' risk score and that they would comply with all rights guaranteed by the First and Fourth Amendments.^[73]

The European Union and other non-U.S. government entities have expressed concern about allowing the CAPPS II proposal to be implemented within their borders. During the early testing of the No Fly List and CAPPS II, the TSA privately asked airlines to disclose massive amounts of personal information about their passengers. This action has been said to be a violation of the Privacy Act of 1974, which forbids the government to compile secret databases on U.S. citizens.

The No Fly List has been variously described as Orwellian and Kafkaesque. Individuals usually do not know they have been put on the list until they attempt to board a plane. Efforts to discover the reasons for being barred from flying meet with indeterminate responses from the authorities, which would neither confirm nor deny that a name is on the List.^[65]

In the midst of this controversy, the Government Accountability Office of the U.S. Congress produced a report critical of the CAPPS II system. It characterized the proposal as incomplete and seriously behind schedule, and noted that the TSA had failed to address "developmental, operational, and privacy issues identified by Congress". On July 14, 2004, TSA officials announced that CAPPS II was being pulled from consideration without proceeding to full testing. Critics have alleged that the TSA has merely chosen to start with a less controversial entry point that they are calling the "Registered Traveler" program.^[74] TSA has also begun testing of another program called "Secure Flight", which is supposed to solve some of the problems of CAPPS I while avoiding the privacy issues of CAPPS II.

In January 2009, Marcus Holmes^[75] conservatively estimated the total cost of the program to be $536 million since 9/11, with a reasonable estimation range that approaches $1 billion, and he questioned whether the benefits of the list outweigh the costs.^[76]

No fly lists in other countries

The government of Canada has created its own no fly list as part of a program called Passenger Protect.^[77] The Canadian list incorporates data from domestic and foreign intelligence sources, including the U.S. No Fly List.^[78] It contains between 500 and 2,000 names.^[79]

See also

• Computer Assisted Passenger Prescreening System
• FBI Index
• Hollywood blacklist
• Interpol Terrorism Watch List
• Office of Foreign Assets Control

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Sources

• Laura K. Donohue, The Cost of Counterterrorism: Power, Politics, and Liberty (Cambridge University Press, 2008), pp. 254–255.
• "Homeland Insecurity: Why 'No-Fly' Just Doesn't Fly" by Randall Amster, Truthout, February 3, 2010.
• "Meet Mikey, 8: U.S. Has Him on Watch List" New York Times, January 14, 2010.
• "Unlikely Terrorists On No Fly List" 60 Minutes, October 8, 2006.
• ACLU Challenges Government No-Fly List
• Reginald T. Shuford (2004-04-06). "Michelle D. Green; John F. Shaw; David C. Fathi; Sarosh Syed; Mohamed Ibrahim; David Nelson; Alexandra Hay, on behalv of themselves and all others similarly situated, Plaintiffs, v. Transportation Security Administration" (PDF). American Civil Liberties Union.
• 1,600 are Suggested Daily for FBI's List by Walter Pincus, Washington Post, November 1, 2009
• Plaintiff in ACLU Suit Challenging Government No-Fly List Describes Struggle – video report by Democracy Now!
• Mrs Shipley's Ghost The Right to Travel and Terrorist Watchlists by Jeffrey Kahn, University of Michigan Press, 2013; – book on the No Fly List and other terrorist watchlists

External links

• "Terrorist Screening Center", FBI.gov
• "Terrorist Watchlist Checks and Air Passenger Prescreening", Congressional Research Service, December 30, 2009.