Making the No Fly List fly: a due process model for terrorist watchlists.

AuthorFlorence, Justin

NOTE CONTENTS INTRODUCTION I. WATCH LIST-BASED SECURITY A. The Value of Watchlists B. The Expansion of Watchlists C. How the Lists Work D. The Current Process II. PRIVATE INTERESTS PROTECTED BY THE DUE PROCESS CLAUSE A. Liberty To Travel B. Employment as Liberty and Property C. Stigma, or Reputation in the Community III. PROTECTING SECURITY AND LIBERTY: A MODEL PROCESS A. Advance Airport Notice B. Compensatory Counsel 1. The Government Interest in Protecting Information 2. The Private Interest in Access to Evidence 3. An Effective Balance CONCLUSION INTRODUCTION

What does Democratic Senator Edward Kennedy of Massachusetts have in common with Republican Congressman Donald Young of Alaska? Watchlists maintained by the United States government have kept them both from flying. In the spring of 2004, airline agents tried to block Senator Kennedy from boarding airplanes on five occasions because his name appeared on a federal terrorist watchlist. (1) In September 2004, Young faced similar frustrations when he attempted to catch an Alaska Airlines flight. (2)

These members of Congress are not alone. Since 9/11, the U.S. government has placed thousands of American travelers on the No Fly List (3) as part of a massive security initiative that affects all of the nearly seven hundred million passengers who fly within the United States annually. (4) The government performs watchlist-based security threat assessments on each of these airline passengers, as well as millions of other individuals employed in the transportation industry, by checking each passenger's or employee's name against one or more terrorist watchlists. (5)

These measures make sense for security purposes, but have a pair of troubling side effects: People may be listed by mistake, and once on a list it is not easy to get off. It took Senator Kennedy several phone calls to high level officials in the Department of Homeland Security (DHS). As Kennedy said at a Judiciary Committee hearing: If the DHS has "that kind of difficulty with a member of Congress, how in the world are average Americans, who are getting caught up in this thing, how are they going to be treated fairly and not have their rights abused?" (6)

In December of 2004, in response to a recommendation of the 9/11 Commission, Congress included in the Intelligence Reform and Terrorism Prevention Act (IRTPA) of 2004 a brief clause requiring that the Transportation Security Administration (TSA), the division of DHS responsible for the transportation sector, "establish a procedure to enable airline passengers, who are delayed or prohibited from boarding a flight" because the watchlist showed they might pose a security threat to "appeal such determination and correct information contained in the system." (7) The Act, however, did not give specific guidance to the agency or require a formal hearing, nor did it cover transportation-sector employees affected by watchlists.

The agency has yet to act. The government has objected that granting watchlisted individuals the core elements of due process--notice and a fair hearing--would threaten transportation security arid require disclosure of classified information. But a fair process need not do so. Drawing on the Supreme Court's invitation to develop narrowly tailored procedures, and programs designed by Congress in other contexts, this Note proposes a balanced approach that would allow for pretravel clearance and a fair hearing for travelers and employees alike, without endangering homeland security. (8)

The Note proceeds in three Parts. Part I briefly describes the value of terrorist watchlists and how they are created. Part II argues that travelers and transportation employees adversely affected by watchlists are entitled to due process because of their constitutional liberty interests in travel, employment, and avoiding the stigma of being identified as a potential terrorist. Part III proposes and describes specially tailored notice and hearing mechanisms for individuals on watchlists. The Conclusion considers the proper role for Congress and the courts in implementing these proposals.

  1. WATCHLIST-BASED SECURITY

    1. The Value of Watchlists

      Today's transportation watchlist system, had it been in place at the time, might have prevented the 9/11 attacks. (9) Watchlists not only provide an effective layer of security, but are also relatively cheap, efficient, and noninvasive. The expense of running names through a computer database pales in comparison to the cost of hiring extra law enforcement officers or checkpoint screeners. And for most people the delay, inconvenience, and privacy invasion of submitting to a watchlist check is far smaller than that imposed by other security methods, such as the full-body pat-downs in vogue at some airports, (10) or the behavioral profiling used in select airports and other mass transit systems. (11)

      Watchlists are becoming more effective as technological and policy innovations make the lists more difficult to evade. New programs like the Transportation Worker Identification Credential (TWIC) (for employees), US-VISIT (for people entering the country), and Registered Traveler (for frequent fliers) all use fingerprints or iris scans to confirm identities, making this form of security more effective and less susceptible to fraud. (12) New TSA regulations require commercial drivers holding hazardous materials endorsements (HMEs) to give fingerprints. (13) And Congress has passed legislation standardizing requirements for state driver's licenses. (14) These technological and policy developments--which make the link between people and names more accurate--make the use of watchlists more effective.

    2. The Expansion of Watchlists

      As watchlists have become more effective, they have expanded dramatically in size and scope. Although an early version of the No Fly List dates back to the 1980s, it contained only sixteen names on September 11, 2001. Since then, the number of names has grown exponentially: Leaks from agency officials and newspaper reports have put the number as high as 325,000 names. (15) The No Fly List has also been transformed into a broad No Transport List: An addendum to the 9/11 Commission Report urged the government to check Amtrak and cruise ship travelers' names against watchlists, (16) and Congress implemented this suggestion as part of IRTPA. (17)

      The expansion and proliferation of watchlists extends beyond travelers to transportation workers. Various statutes and agency regulations require TSA to check terrorist watchlists for airline pilots, (18) people who work at airports, (19) helicopter pilots, (20) commercial truck drivers holding HMEs (an estimated 2.9 million Americans), (21) and maritime, cruise ship, and port workers. (22) The checks may eventually expand to include all transportation workers at seaports, airports, and rail, pipeline, trucking, and mass transit facilities.

    3. How the Lists Work

      The government does not comment on how it decides whether to put an individual on a watchlist, and lawsuits to compel disclosure of this information have failed. (23) Yet some basic information is publicly available. The public record suggests that the federal watchlists are largely compiled from classified evidence collected by confidential sources. (24) Although the No Fly List is maintained by TSA, it is based on information from other government agencies, (25) in particular the FBI's Terrorist Screening Center (TSC). (26) The nation's foreign intelligence agencies now readily share leads with the FBI, including intelligence information collected through controversial means, such as the NSA's domestic surveillance programs. (27)

      More information is available about how the list works. (28) Currently, the government sends updated versions of the No Fly List to airlines, who are then responsible for checking passengers' names against the list. (29) TSA has long planned to take over administration of the No Fly List, at first through the CAPPS II (Computer Assisted Passenger Pre-screening System) program, (30) and now through its successor known as Secure Flight. (31) The IRTPA required that TSA begin testing this program by January 1, 2005 and that it assume the passenger prescreening function within 180 days of completing the testing, (32) but the development continues to be delayed. (33) A TSA press release notes that, once Secure Flight "is phased in, TSA will be able to check passenger records against watch list information not previously available to airlines." (34)

      The secrecy of the administration of the watchlists--important for security purposes--leaves many questions unanswered. How many people are on the No Fly List (and not allowed to fly at all) as compared to the Selectee List (and subject only to additional screening)? How many persons on watchlists are American citizens or lawful permanent residents? How many people are watchlisted by mistake or because their names are similar to those of suspected terrorists? (35) The answers to these questions affect how much process is constitutionally due to watchlisted individuals. (36)

    4. The Current Process

      While employees adversely affected by government use of watchlists currently receive some process, travelers are granted none at all. The government gives transportation-sector workers predeprivation notice of government actions based on security threat assessments, but the government has little choice in the matter: Employees need to be told not to come to work. (37) Under the current regulations, some transportation employees adversely affected by the use of watchlists receive a minimal appeals process. For example, citizen pilots are statutorily entitled to an on-the-record hearing under the Administrative Procedure Act. (38) Other types of transportation workers, (39) and noncitizen pilots, receive only the opportunity to offer a written challenge through an ex parte exchange of documents. Even those given an opportunity to...

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