[Infowarrior] - A better no-fly list

[Richard Forno]

A better no-fly list
By Justin Florence
Monday, January 4, 2010; A13

http://www.washingtonpost.com/wp-dyn/content/article/2010/01/03/AR2010010301811_pf.html
In the wake of embarrassing stories a few years ago about members of  
Congress and babies appearing on the "no-fly" list, the government  
reduced the number of names drawing extra scrutiny at airports.  
Federal officials are right to worry about the civil-liberties  
ramifications of the no-fly list, but the facts surrounding the  
attempted attack on Northwest Airlines Flight 253 underscore that the  
wrong approach has been taken. Rather than simply reducing the number  
of names on the no-fly list or raising the bar for a name to be  
listed, the government should make it easier for wrongly listed  
travelers to clear their names.

One of the lessons of Sept. 11, 2001, reaffirmed last month, is that  
it is difficult to keep dangerous items off planes. Watch lists will  
never replace metal detectors, but they may stop some people who would  
destroy planes with box cutters or liquid explosives. The no-fly list  
itself targets potentially dangerous people without the use of racial  
or religious profiling, and improving it does not require expensive  
scanning equipment or the hiring of additional screeners.

The problem with the no-fly list is not its size but that some  
individuals appear on it because they share the name of a dangerous  
person or as a result of bureaucratic accident or thinly sourced and  
inaccurate intelligence tips. Rather than require the government to be  
nearly certain that an individual is an actual security threat before  
initially listing him or her -- and running the risk that the truly  
dangerous will be left unlisted -- it would make more sense to  
facilitate the removal of wrongly listed people.

To begin, travelers should have a way to determine in advance of a  
flight whether their names are on the list. That way they won't be  
surprised when they show up at the airport and are forced to miss a  
flight. Of course we don't want to have a Web site where people can  
check their names; that would make it too easy for terrorists to check  
false identities against the list until they find one that works. A  
better approach would be to create a system where people can check --  
in person -- whether they are on the list. Locations for such checks  
could be airport security offices, U.S. embassies or other federal  
buildings. Truly dangerous people are unlikely to identify themselves  
to security officials to ask whether they are on the list; if they do,  
they can be questioned or arrested. But people who should not be on  
the list would have the chance to clear their names before enduring  
delays or missing flights.

For individuals listed by accident or because they share a dangerous  
person's name, the Transportation Security Administration's ombudsman  
system could simply update the federal watch list (with more specific  
identifying data such as date of birth, if necessary). The bigger  
challenge is people who may well be dangerous but for whom the  
intelligence community has only a single, classified red flag, perhaps  
a warning from a concerned parent or intelligence asset. The question  
becomes whether that tip is an indication of real danger or the result  
of undue suspicion.

To resolve these difficult cases, listed individuals should be given  
the right to request an administrative hearing. If the government is  
concerned that sharing secret evidence might reveal intelligence  
sources and methods, it should provide these individuals with an  
attorney who has security clearance. These lawyers can review the  
evidence, clear up confusion and present the individual's best case.  
(Providing representation would help compensate people for the  
inconvenience of an erroneous listing.) It is hard to imagine that  
actual terrorists would request such a hearing to attempt to remove  
their names from the list. If they did, the government would be able  
to learn more about them and would be in a position to arrest them  
when appropriate. But it should not be difficult for innocent people  
to clear their names with the help of an attorney who has access to  
secret evidence.

Because Umar Farouk Abdulmutallab was listed in a government database  
but was not on the no-fly list, some have suggested making the  
revocation of travel privileges more automatic. We should know more  
soon about where our system broke down and why the warnings from  
Abdulmutallab's father did not result in greater scrutiny. But whether  
or not the government expands the no-fly list, federal officials  
should incorporate ways for wrongly listed travelers to clear their  
names. This would help the no-fly list keep dangerous people out of  
our aviation system with minimal inconvenience to the rest of us.

The writer is an attorney at a Washington law firm and a fellow at the  
Georgetown Center on National Security and the Law. He has previously  
published in the Yale Law Journal on the constitutionality of the no- 
fly list.