Taking Liberties: The War on Terror and the Erosion of American Democracy (14 page)

As of June 2010, 81,793 travelers had asked the Department of Homeland Security to remove their names from the watchlist or clarify their status.
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Many of their cases are still pending as I write; those whose cases were resolved may have no way to know whether their complaints resulted in any concrete action or whether they will have a problem the next time they go to the airport.
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But the TSA says things have improved since the beginning of the decade. In 2007, the TSA conducted a “scrub” of its list and expressed confidence that mistakes were no longer a concern.
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Some positive procedural changes were made during the second half of the decade, like adopting criteria (including a “reasonable suspicion” standard) for putting names on the list.
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A 2008 article in the
Washington Times
reporting on some of these developments optimistically began, “Sen. Ted Kennedy can relax. Terrorists, not so much.”
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The recently initiated Secure Flight program aims to reduce the number of false positives at the airport.
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The Transportation Security Administration, taking over the job of screening from the airlines, undertook to refine the list by including data on gender and date of birth, and by requiring a complete name before putting someone on the No Fly list (although someone known by a partial name or epithet—like “Ahmed the Tall”—might still be on the Selectee list). A traveler might now find it easier to show airlines that he is not
that
T. Kennedy or
that
Michael Hicks. Of course, this convenience comes at the expense of personal privacy, as airlines now ask passengers for a range of personal information, and pass on to the TSA the passenger’s passport number and itinerary in addition to personal identifiers.
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But despite periodic flurries of procedural tweaks and positive public relations spin, the flaws in the watchlist designation process itself remain. Those whose names actually were placed on the list, for unknown reasons,
continue to have problems, and their experiences do not have the cuteness quotient of little Mikey’s story.

Ayman Latif, a disabled Marine Corps veteran who was born and raised in Miami, was living in Egypt with his wife and baby. His veterans’ disability benefits were reduced because he was not permitted to fly back to the United States for a required in-person reassessment meeting with the Veterans Administration (VA). Ayman and his wife had decided to take the baby to Miami for a visit with the family. But at the Cairo airport they were shocked to be told that they would not be allowed on the plane. Ayman did not know why his name might have ended up on a watchlist or how to get it removed. He tried filing a form with DHS TRIP in April 2010 and was given a Redress Control Number. Three months later, not having gotten any response, he filed another form and got another Redress Control Number. Not knowing whether the redress process was accomplishing anything, he enlisted the help of the U.S. Embassy and, as a result, FBI agents met with him in Cairo and questioned him for four hours. He was told that these agents were recommending that he be granted a waiver to fly, but that did not materialize. Someone back in Washington whom he had not met evidently would not approve. While he was stranded in Egypt, Ayman missed his appointment with the VA and was unable to reschedule the appointment because he was still not allowed to fly to the United States. As a result, his benefits were reduced and Ayman had to move his family to lower-cost housing. Ayman hoped that his lawsuit might finally cause someone to review his case and realize that it had all been a mistake. That plan succeeded, at least in part. After the complaint was filed, he was permitted to fly home to the United States on a one-time “waiver.”

Steve Washburn, another veteran and American citizen, took a job with a technology company in Riyadh. But he and his wife did not take to life in Saudi Arabia and so they decided to move back home to the United States. They sold their house, closed their bank account, and planned to go to Las Cruces, New Mexico, where Steve’s parents lived. They got as far as Dublin, where they were visiting Steve’s pregnant step-daughter, and were then told they would not be allowed to fly to the United States. Sympathetic FBI agents suggested that Steve fly to Mexico and then cross the border on foot at Ciudad Juarez, since he was only prohibited from flying to the United States, not from entering the country. Accepting this suggestion, he bought a plane ticket from London to Mexico City. His wife, a citizen of Spain, was told that she would not be permitted to accompany
her husband even though she was not on any watchlist. Steve got on the flight to Mexico but, after three and a half hours in the air the plane was sent back to London. Steve was detained and interrogated for nine hours. His life savings were confiscated. His Irish visa, which he had extended twice, was expiring and he had every reason to be concerned that the Irish authorities would lose patience with their involuntary guest. Although Steve is a lifelong U.S. citizen, he had become a man without a country. He called the FBI in New Mexico to ask for help and, as a result, FBI agents met with him in Dublin. After three interrogation sessions and a voluntary polygraph test, which he passed, the agents told him they would recommend a waiver so that he could fly home. (One might wonder whether one side benefit of the watchlists, or one purpose, is to provide a strong incentive for people who might otherwise have been unwilling to submit to interrogation to answer questions about who and what they know, or to agree to serve as informants.) Steve tried again, flying to Mexico City, but when he arrived there he was handcuffed to a chair for hours, interrogated for at least an hour, and detained overnight. “Growing up in America,” he says, “we’re taught the great American system in that you’re innocent until proven guilty.”
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Ayman, Steve, and fifteen other United States citizens or legal residents who are not allowed to fly to, from, or within the United States for reasons they do not understand became plaintiffs in a 2010 ACLU lawsuit about the No Fly list,
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one of the watchlists which still leave innocent Americans stranded, with no effective means of convincing the bureaucracy of their innocence—nine years, several statutes, and multiple lawsuits after 9/11.

Why have we made so little progress on the due process front over the course of a decade? Why don’t we insist that Congress and the courts show more vigilance in protecting the right to travel and the right to be treated fairly by the government? Perhaps our tolerance for false positives has grown post-9/11 because we hope to tip the balance in the direction of safety.
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But not all experts think No Fly lists as they are currently constructed are a sufficiently effective means of preventing terrorist incidents to justify their burden on constitutional rights. Security expert Bruce Schneier, who has been a persistent gadfly to the security agencies, has found it easy to imagine ways to get around the No Fly list—at least before the Secure Flight program—for anyone willing to use false identification or stolen credit cards.
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Mario Labbé, a Canadian record company executive who lives in Quebec, found a way to thwart the watchlist system even
without resorting to fraud. He had discovered that his name had been put on the watchlist after he had been a victim of identity theft, but the Department of Homeland Security told him there was no way to remove it. So he adopted the simple expedient of changing his first name, which worked to stymie the system.
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Schneier’s conclusion is that much of the money we spend on airport security is “a show designed to make people feel better” and that we would be better off spending our resources on trying to catch terrorists before they head for the airport. One author estimated the cost of the watchlist program since 9/11 as being as much as $1 billion, and also questioned whether the program is worth its costs or if it is just a form of what Schneier terms “security theater.”
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The 9/11 Commission regarded the watchlists as useful,
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although noting that they could be more carefully administered, but also concluded that we may be fighting the last war by focusing too narrowly on the identity of air passengers rather than on paying greater attention to cargo and to the security of our ports.
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In February 2009 the U.S. House of Representatives passed the Fair, Accurate, Secure, and Timely [FAST] Redress Act, to create a better process for individuals placed on government watch lists to challenge their classification.
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But the bill never passed the Senate. We still have a lot of work to do on this front, but it is noteworthy that in this area, it was possible to get Congress to pay attention to the impact of counterterrorism measures on the innocent and to effect some useful changes in the redress system. It is also notable that it took so many years to accomplish so little.

Security Theater?

Conferring discretion on thousands of airport screeners and state and local police to decide who looks suspicious is another kind of recipe for violations of the Fourth Amendment (which prohibits unreasonable searches and seizures) and the Equal Protection Clause. In the post-9/11 world, it doesn’t take a watchlist to interfere with one’s travel plans. Almost anyone can be singled out for special screening and questioning—and not just for forgetting to discard liquids or neglecting to take off your shoes. Some joke sardonically that Muslims are singled out for the offense of “FWM”—Flying While Muslim—but non-Muslims also find themselves detained for a wide variety of reasons. Here are two examples.

Nick George, a student at Pomona College, was studying Arabic. He brought along his Arabic-English flash cards to study on the long plane
ride from Philadelphia back to school. TSA agents were suspicious of the Arabic language, so Nick ended up being handcuffed, interrogated, and jailed for five hours—all for Flying with a Foreign Language (“FFL”?). He missed his flight and became so outraged that he is suing the TSA for violating his First Amendment right to study the language of his choice, and his Fourth Amendment right to be free from unreasonable seizures.
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Steven Bierfeldt, Director of Development for the Campaign for Liberty, a political organization that grew out of Congressman Ron Paul’s presidential campaign, was detained in a small room at Lambert-St. Louis International Airport and interrogated because the metal box he put on the belt of the security checkpoint X-ray machine contained cash, which he carried in connection with his fundraising work. His lawsuit against the Department of Homeland Security for illegally detaining him for the offense of Flying with Cash (“FWC”?) was bolstered by an audio recording he had made of his interrogation.
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His case was eventually settled when the TSA agreed to instruct its agents that their job was to search for possible terrorists and not to explore whatever conceivable offense someone might be committing by carrying a large amount of cash.
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The widespread introduction of what the TSA calls “advance imaging” technology in the late fall of 2010 caused many Americans to become indignant and even outraged, as the level of intrusion on personal privacy during routine airport security screening went far beyond fear of having a hole in one’s sock. The TSA had installed about 500 whole-body imaging scanners by December 2010, with another 500 planned for installation in 2011, at airports around the country. These machines use backscatter (low-level X-ray) or millimeter wave technology in order to detect nonmetallic objects that might pose security threats, like powders and gels. The technology produces detailed, three-dimensional images of the naked body of the person scanned. Those who favored the use of this technology told pollsters that they put a higher priority on combating terrorism than on protecting privacy.
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Others were highly concerned about the degree of invasion of privacy—the scans could reveal intimate and potentially embarrassing details like whether the person screened had a colostomy bag or wore an adult diaper. Although the TSA said the amount of radiation involved in backscatter technology was negligible, some questioned whether there had been sufficient study of possible health risks. And others pointed to the unequal impact of such technology on religious objectors and on the disabled—one flight attendant who was a breast cancer survivor was ordered to expose and remove her prosthetic breast after a
Charlotte, North Carolina, airport machine showed that her breast was abnormal.
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Humorist Dave Barry was pulled aside for a special pat down because his image showed a “blurry groin.”
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To appease those concerned about the machines, the TSA announced that anyone who was asked to walk through the machines could opt out, but at the price of submitting to a thorough pat down. Some were even less sanguine about this prospect. One bladder cancer survivor from Michigan was covered in urine when agents accidentally tore open his colostomy bag during a pat down.
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Questions were also raised about the effectiveness of this technology. The General Accounting Office, Congress’s own auditing agency, repeatedly expressed doubts about whether the machines are really able to do the intended job. That office specifically told Congress that it was unclear whether the bodyscanners would have been able to detect the explosives in Omar Abdulmutallab’s underwear—the very incident that led to this security upgrade.
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Nongovernmental scientists who studied the technology concluded that the scanners were poor at identifying powder or plastic explosives, or items placed in body cavities.
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And this technology comes with a hefty price tag—about $150,000 per machine. Security expert Bruce Schneier, for one, thinks the machines are a waste of money that could be better spent on more essential programs, like securing ports. Would the opinion of those who value security over privacy be affected if they heard more from experts who doubted whether these machines actually provide much additional security? Or are those supporters just trusting the government to decide that what they are doing is essential and involves no more invasion of privacy than necessary?
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