A Very Brief History of the No-Fly List
posted by Jeffrey Kahn
In the aftermath of the near catastrophe aboard Northwest Flight 253 on Christmas Day, Washington is clamoring for more names, faster, on the No-Fly List. The Transportation Security Administration (TSA) checks each potential traveler’s name against this list of persons deemed too dangerous to fly. This recent scare seems to have flipped the conventional wisdom about the No-Fly List. Fairly or not, many used to perceive the list as too big and too prone to false positives (remember Cat Stevens?). The new conventional wisdom seems to be different: fill ‘er up.
Have you ever wondered where this No-Fly List came from and how it came to look the way it does? What does “dangerous” mean? Who decides? Media reports about the No-Fly List led me to write my article in the UCLA Law Review, which explored the constitutional questions underneath those policy ones. Here is a very brief history of the No-Fly List to give you some perspective on the White House report scheduled for release today. I’ll conclude with a few questions that will be covered in future posts.
The No-Fly List did not start out as a list at all, but as occasional security bulletins issued to commercial airlines by the FAA. Long before 9/11, these bulletins advised (but did not oblige) airlines to take various security precautions based on intelligence gathered about long-term or specific threats. About 20-30 might be issued each year. These advisory bulletins eventually became obligatory “Security Directives” (or SDs, as they were called) in the aftermath of the catastrophic bombing of Pan Am Flight 103 over Lockerbie, Scotland. This was a change based on the findings of a presidential commission on the bombing, which found plenty of blame to spread around official Washington (sound familiar?).
These SDs were the tool of a new, but rather small office in the FAA. That office sought intelligence relevant to airline security from more established and powerful agencies like the CIA, State Department, or the FBI. As a consumer of other agencies’ intelligence, FAA needed their permission to distribute its information to commercial airlines. A few SDs named individuals who were considered to be a “specific and credible threat” to civil aviation. That phrase had a particular meaning in government and industry circles, much as different standards of review do in the legal community. When FAA used the phrase, it meant that the individual named was believed to be an actual, concrete threat to a particular aircraft or route.
On September 10, 2001, this incipient no-fly list had about 20 names on it. By comparison, the State Department’s TIPOFF watchlist (created in 1987 to track known or suspected terrorists of all stripes, colors, and modi operandi), had about 61,000 names on it. This discrepancy positively outraged several members of the 9/11 Commission. In a rather harsh cross-examination in early 2004, several commissioners jumped on this numerical disparity between tens of thousands of people that the State Department suspected to be bad enough to deny a visa, and the dozen or so that the FAA suspected were about to try to blow up an airplane. (Pages 26-30 of the 1/27/04 hearing transcript gives you a flavor of this, or you can read former co-chairman Thomas Kean’s and his counsel John Farmer’s recollections in their op-ed yesterday: How 12/25 was like 9/11, N.Y. Times 1/6/10 at A23 NY edition.) The commissioners were not particularly interested at that time in exploring the reasons why these lists might employ different standards to accomplish their different purposes.
By that time, however, the list had expanded rapidly. And with this numerical expansion, the list’s intended purpose broadened as well. The No-Fly List — an actual list now known by that name had been created to replace the piecemeal system of FAA Security Directives as new agencies like the TSA were formed — was no longer to be a protection only against concrete threats to particular planes or routes (although this obviously remained a core purpose). The list was now conceived to serve other purposes, too. For instance, it could keep people off planes who were suspected of terrorist affiliations but not suspected of plotting an imminent attack on a specific aircraft, carrier or route. Likewise, it could be used to disrupt networks of suspected terrorists by making it much more difficult for them to travel and meet. Needless to say, the current criteria to add a name to the list are closely guarded secrets. But the test is no longer narrowly confined to “specific and credible threats” to civil aviation as that term was used before 9/11. The No-Fly List (and its cousin, the Selectee List used to identify passengers for heightened scrutiny at checkpoints) now have multiple purposes as part of a multi-layered approach to aviation security.
(Incidentally, although the No-Fly List is used by the TSA, it is created and maintained by a different, multi-agency, government organization, the Terrorist Screening Center (TSC). The TSC is the central repository that consolidates the government’s different terrorism databases and manages the nation’s many specialized watchlists. The Abdulmutallab case tests whether this system for consolidation is working as it should. But that is a story for a future post.)
It is this broader use, and the broader criteria that facilitate it, that unnerves some people. The whole enterprise is possible, of course, because nobody (citizen or foreigner, at home or abroad) has a constitutional right to fly on an airplane. Although most Americans take their freedom of movement for granted (and it should be noted that, according to recent congressional testimony, the No-Fly List includes only about 170 U.S. persons out of a total of approximately 3,400 individuals), the actual constitutional protection for that abstract concept is rather narrow and not particularly modern in its origins. It is black-letter law, and has been for some time, that although the right to travel is generally protected in our society, there is no right to travel by any particular mode of transportation.
In future posts, I’ll discuss three issues raised by this current system:
(1) “Déjà vu all over again.” In its broadest uses, the No-Fly List seems virtually indistinguishable from past restrictions on travel during the hottest early years of the Cold War and the Red Scare. In those days, paper passports were denied (instead of electronic boarding passes) to those whose travel was deemed by a small office in the State Department to be (in the official parlance of the day) “not in the interests of the United States.” Is this a good analogy? If so, what can we learn from this past?
(2) “You can’t get there from here.” Is it time to reconsider the caselaw that distinguishes the abstractly protected general right to travel from the right to travel by plane (weakly protected, if at all)? This caselaw emerged at a time when air travel was the privilege of an elite few. Is it appropriate in the twenty-first century to make this distinction?
(3) “Alphabet Soup.” What is the Terrorist Screening Center (TSC), how does it relate to the Transportation Security Administration (TSA), the National Counterterrorism Center (NCTC), and other new agencies that are sometimes hard to find but don’t have a hard time finding you.