The debate in Congress over using the “no-fly” list to stop suspected terrorists from buying guns has refocused attention on the government’s use of watch lists. While the government should keep an eye on suspected terrorists — and ensure they don’t purchase guns in the U.S. — many of the lists are overly broad and prone to errors that are difficult to fix.
Take the so-called no-fly list, which includes about 47,000 people — 800 of them Americans — identified by the government as “suspected terrorists.” These are individuals the U.S. government determined meet criteria for inclusion on the list because it suspects, based on intelligence, they pose a threat of participating in terrorist activity at some time in the future — a vague and subjective standard.
The list has to be secret, so an American does not know he is on the list until a problem arises — usually when that person is barred from boarding an airplane, often in a humiliating situation involving federal law enforcement. The process for getting off the list, which has improved because of lawsuits, is still difficult and doesn’t include appropriate due process procedures.
A federal court ruled, on some counts, against the federal government in a case brought by 13 U.S. citizens who were barred from boarding flights in and to the United States. Four of them were veterans of the U.S. military. One of the men, Ibraheim “Abe” Mashal, recently detailed his four-year odyssey in a piece for Vox. Mashal went to Chicago’s Midway Airport for a flight to Seattle. He was told he could not board and was surrounded by law enforcement officials. After hours of questioning, he drove home. FBI officials visited his home and told him he would be dropped from the list if he agreed to become an informant for the agency and report on what was happening in his mosque. He refused. He was unable to fly for four years. He missed a wedding, a funeral and a graduation. His business also lost thousands of dollars because he could only work within driving distance of his home.
He was never officially told whether he was on the no-fly list and, if so, why. He also doesn’t know if he is truly off the list or if he will be barred from boarding a plane sometime in the future.
“Plaintiffs have not been officially provided with any information about why they are not allowed to board commercial flights; they have not been officially informed whether they are on the No Fly List; if they are on the No Fly List, they have not been provided with an opportunity to contest their placement on the list; and they have not been provided with an in-person hearing,” the federal district court in Oregon said in a 2013 ruling in Latif v. Holder.
Some improvements have come since the Latif case. Those who are denied boarding can now be told, by a written letter, that they are on the no-fly list and they may be given information as to why. They can appeal their inclusion on the list, but the process is still cumbersome and tilted in favor of the government, which does not have to share the evidence it used to put someone on the list.
The American Civil Liberties Union, which filed the Latif case, believes the process is still unconstitutional, according to Hina Shamsi, the group’s national security project director. Those who contest their inclusion on the list should be given access, with the exception of classified information, to the information the government used to determine they were suspected terrorists. If they believe the information is erroneous, they should be able to make their case to a neutral decision maker. This is how the U.S. judicial process is supposed to work.
The no-fly and other watch lists play an important role in preventing terrorist attacks. But the federal government can do that work while abiding by the constitutional protections granted to all Americans.