No Fly Lists.....Watch Lists....Presumed Guilty - U.S. Politics Online: A Political Discussion Forum

Sunshine · #1 (**permalink**) 12-30-2009

OK, here's my beef with No fly and Watch lists! I think it is a civil rights issue. Particularly when terrorism is touted as a 'criminal' act, yet the basic rights 'criminals' have, e.g. Miranda, are dispensed with.

How about names that are the same or similar. Every city I go to, I take out the phone book and look up MY name. There can be up to 6 in any given major city. OSB, you know my name. Look it up in the Philly directory. It's there. I've looked.

Just ONE namesake is all it takes, and I'll never fly again.

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Government personnel are now being wrongly put on terrorist watch lists. Also, I talk about my own scary run-in with the TSA.

By Jon Stokes | Last updated May 6, 2006 8:10 PMText Size Print this article Leave a comment Wired News has an update on the latest TSA follies, focusing mainly in the fact that even government employees from the nation's national security apparatus are being routinely selected for extra scrutiny at airports because their names are somehow on the TSA's terrorist watch list. A look at newly released logs from a TSA call center reveals that among those who called in to complain about the presence of their names on the watch list are an anti-terrorism specialist for the U.S. Army, a State Department diplomat, and all sorts of folks with varying levels of security clearance.

The problem is poised to grow, because the TSA's list is merely a subset of a larger government watch list that's seeing increasing use by everyone from border patrol to local law enforcement.

So what are your rights if your name is unjustly on the watch-list, and you'd like to be able to move about the country without being singled out by airport screeners and possibly even traffic cops for extra attention? The answer is, unfortunately, that some of your basic Constitutional rights are effectively non-existent if you happen to get caught somewhere in America's growing terrorist dragnet.

As of right now, there aren't many rules to which you can appeal for redress—no laws aimed at protecting the accused, no binding judicial decisions, and few formal departmental protocols for addressing grievances. The kinds of rules and precedents that govern most of the other citizen-facing aspects of the federal bureaucracy just aren't there when it comes to anything terrorism and/or TSA-related. Believe me, because I know from first-hand experience.

My time in the TSA's Constitution-free zone
Last year, I got stopped at airport security due to the contents of my carry-on bag. I won't give details here, but totally unbeknownst to me there was something deep down in one of the hard-to-reach crevices of my Brenthaven backpack that would've gotten me in plenty of trouble with baggage screeners even before 9/11. My heart stopped when the screener pulled this item out of my bag, and I knew I was probably in big trouble. However, I had absolutely no firm idea how big the trouble could potentially be, and therein lies the problem.

Let's pause the story here for a moment and consider what happens if you're pulled over by the police for speeding. You know roughly what the penalties are based on how fast you were going, what kind of behavior to expect from the officer on the scene, and where to go if you want to dispute the charges. Most importantly, even if you have no idea what to expect the system protects you in your ignorance by stipulating that if the officer decides you may be guilty of a crime and he initates an arrest, he cannot just begin interrogating you without first informing you of your Miranda rights (the right to remain silent, the right to an attorney). Your Miranda rights are there to keep you from being intimidated by law enforcement into giving what amounts to a confession that might later be used against you in court.

When the item was discovered in my backpack, I was, of course, completely surprised, shaken, uncertain, and intimidated by the circumstances. In that state I was interrogated by both the TSA and the Chicago Police Department, and forced to give multiple recorded statements—in other words I was allowed freely to incriminate myself—without once being informed of my rights, if any. And then, after confiscating the item, they let me on the airplane!

After flying a few more times—apparently running squarely afoul of the TSA's airline security measures doesn't actually mean that you're a security threat who should have their flying privileges supsended for the safety of the skies—I eventually got a letter from the TSA informing me that my case would be looked over by an "administrative court" and that I'd be assessed a fine that could range from as little as US$100 up to $10,000.

At this point, I called Bill Scannell, an old acquaintance of mine and a prominent anti-TSA activist, to see if he or someone he knew could help me out. I also contacted my lawyer, who's a partner in a major national law firm, and tried to get a referral.

Bill got hold of some folks from the EFF, including legal counsel, and he reported back to me with basically what I've laid out above: the security checkpoint at an American airport is effectively a "Constitution-free zone" (Bill's term), where you have no Miranda rights, no protection from any probable cause requirements for searches, and you're completely at the mercy of the individuals in the system. With respect to case law, this is also uncharted territory for the courts, and there are no binding precedents that cover these types of situations, because it's all simply too new to have been litigated enough. As for my lawyer, he had no luck in hooking me up with someone who specialized in "federal administrative procedures," which is the kind of law that would govern any dispute I had with the TSA.

Furthermore, the administrative court to which my case was referred is just a guy behind a desk who looks over the evidence (reports from the scene and my own recorded statements) and sort of randomly assesses a fine. As this MSNBC article attests, there's no iron-clad procedure for sorting out who gets hit with what, so you're entirely at the mercy of some random bureaucrat. After this person assesses a fine, you have a few appeals options that place you at the mercy of other random bureaucrats.

To sum up, if you run afoul of the nation's "national security" apparatus, you're completely on your own. There are no firm rules, no case law, no real appeals processes, no normal array of Constitutional rights, no lawyers to help, and generally none of the other things that we as American citizens expect to be able to fall back on when we've been (justly or unjustly) identified by the government as wrong-doers.

So what, then, can the accused rely on? The kindness of strangers, actually.

Epilogue: the kindness of strangers
Believe it or not, the actual people that I encountered at all levels of the national security bureaucracy, from the airport baggage screening personnel to the Chicago PD to the TSA higher-ups that were on-site at the airport to the administrative court "judge" who assessed my fine, were all fantastic. If it weren't for their common sense, basic goodwill, and genuine committment to national security then I might've ended up with much, much worse than the ~US$150 fine that I ended up paying.

It was immediately apparent to the screener who found the item in my bag that this was all a big mistake, and that I was clearly not a threat to airport security. After some questioning and a background check that came up clean, this fact was also clear to the cops and to the TSA supervisor. Even the TSA administrative judge, with whom I had some telephone contact, was on my side. Everyone, from the folks on the scene to the guy looking over the reports weeks later, called the situation correctly and did what they could to see that the impact on me was minimal. I'm grateful for all of this, but it shouldn't have had to be that way.

We're supposed to have a government of laws, not of men. No American should ever have to face the prospect of being deprived of property or liberty armed with only the knowledge that their fate is in the hands of people who're essentially playing it all by ear. Even in places where corruption and bias are problems, and the laws are enforced irregularly, at least there are formal rules and binding precedents in place for the protection of the accused. But to be in a situation where you're entirely at the mercy of the instincts of a group of federal employees who haven't even taken an oath of office isn't just un-American, but uncivilized. Let's all hope and pray that our national security system becomes more regular, more rational, more accused-friendly, more transparent, and more American before there's another attack and it grows even more tentacles.

Update: Just to quell some of the more bizarre speculation on what was in my bag, no, it obviously wasn't a controlled substance or else I'd have been hauled off to jail. And no, it wasn't anything particularly embarrassing. I don't want to give details because, while I presume that I'm out of the woods with this whole affair after having paid the fine, when it comes to legal matters (civil, criminal, or whatever) a good general rule to live by is that you're better off just keeping your mouth shut in public unless you've first had your comments vetted by a lawyer. Not having had the luxury of legal counsel at any point in this ordeal, I really have no idea what's smart to reveal on the Internet and what's not. I guess I can say that it was a self-defense item, but that's as far as I'm willing to go in print about it.

Terrorist watch list follies, and my time in the TSA's Constitution-free zone

Sunshine · #2 (**permalink**) 12-30-2009

And here's another. Why is it that with the mere stroke of a pen one's life can become disrupted in this manner? How is that constitutional?

In the case of the Christmas day bomber......flip that around. How would you like it if a pissed off relative or a disgruntled poster turned YOU in...?

There MUST be some restraints on what can be done on a 'tip' ...or we will be back to Salem.

Of course, it's easy to argue the Christmas bomber with hindsight being 20:20.

What if? Just sayin'.

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Watch Lists
Since September 11, 2001, the United States government has increasingly used watch lists as a counterterrorism tool in a variety of contexts. In addition to the familiar “no fly” list used for screening airline passengers, watch lists have been used in screening for employment, contracts, government benefits, and even consumer transactions like mortgages. Misidentification or unwarranted placement of individuals’ names on watch lists can lead to consequences ranging from minor inconvenience or delay, to invasions of privacy, to more serious damage to reputation, employability, the right to travel or other constitutionally protected freedoms.

Watch lists should only be used in situations where decisions must be made quickly and grave consequences would follow from failure to screen out a listed person. In those instances, government agencies must establish measures to promote the accuracy of the list at the “front end,” thus improving the efficiency and effectiveness of the lists and providing greater fairness to individuals. Agencies must also be required to establish a system for redress at the “back end” that will provide a meaningful and fundamentally fair opportunity for individuals to challenge their inclusion on a watch list. Individuals should be able to challenge their inclusion because of mistaken identify or because the government lacks an adequate justification for including them. The system should be efficient and guarantee removal and clearance for the individual.

Watch lists must be employed accurately and fairly, both to provide effective security tools and to avoid undercutting the very values they are designed to protect.

Constitution Project > Issue > Watch Lists

tsquare · #3 (**permalink**) 12-30-2009

Then I assume you also have issues with this

Not withstanding that terror is not a crime but an act of war... thus crimminal law doesn't apply

Sunshine · #4 (**permalink**) 12-30-2009

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Originally Posted by tsquare

Then I assume you also have issues with this

Not withstanding that terror is not a crime but an act of war... thus crimminal law doesn't apply

If terrorism is an act of war, then why are terrorists being tried in our criminal courts?

Do tell.

tsquare · #5 (**permalink**) 12-30-2009

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Originally Posted by Sunshine

If terrorism is an act of war, then why are terrorists being tried in our criminal courts?

Do tell.

Because we have a ass-stupid, brain-donor, miserable POS, liberal lawyer in the White House.

But thanks for asking

dblack · #6 (**permalink**) 12-30-2009

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Originally Posted by tsquare

Then I assume you also have issues with this

Not withstanding that terror is not a crime but an act of war... thus crimminal law doesn't apply

So, if you happen to get mistaken for a terrorist, you're just fucked, eh? No right to a court hearing, no due process - awesome. Has it ever dawned on you that you, or someone you are about, might get caught in such a catch-22?

iamwhatiseem · #7 (**permalink**) 12-30-2009

Part of the price.
Not having no fly list would result in the Christmas attack a regular occurrence...except successful.
Hmmm...lemme see...longer waits at the airport, inconvenience for some...or possible death of 1000's every year...hmmm.

Steve · #8 (**permalink**) 12-30-2009

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Originally Posted by Sunshine

There MUST be some restraints on what can be done on a 'tip'...

We should always err on the side of caution.

Always.

If that ends up being inconvenient for some, well too bad...

Tanngrisnir3 · #9 (**permalink**) 12-30-2009

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Originally Posted by tsquare

Then I assume you also have issues with this

Not withstanding that terror is not a crime but an act of war... thus crimminal law doesn't apply

Yawn. Yet again you demonstrate an utter lack of understanding of the law and how it's applied.

Tell me, where is Richard Reid, the 'shoe bomber'? And how did he get where he is? How about Ramzi Yousef? Where is he right now, and how did he get there?

tsquare · #10 (**permalink**) 12-30-2009

Quote:

Originally Posted by dblack

So, if you happen to get mistaken for a terrorist, you're just fucked, eh? No right to a court hearing, no due process - awesome. Has it ever dawned on you that you, or someone you are about, might get caught in such a catch-22?

I ASSUME that like identity theft, there is somew way to 'fix' this.

Were it me, I'd talk with my lawyer. Then (unless advised otherwise) I would contact the State Department. You have or should have means of proving that you are you and NOT that other guy. The best way to do that would be with your passport. Once confirming that you are you and not him... have the State Department issue a letter to that effect: John Smith passport control # 123456789, is not the John Smith currently on the watch list. I would then take that letter to DHS on a day where time is not of great importance (ie: you are not trying to get someplace) and have them note in the ‘system’ that John Smith passport control # 123456789, is not the John Smith currently on the watch list.

Now since we all KNOW that most people that would have this problem are likely of middle eastern extraction… very likely they have such means at their ready disposal. They had to prove who they were when they got here.

But tsqaure… what about the guy from the back woods of the US that never got a passport?

Does he have any ID? Can the guy legally drive? Vote? Cash a check?

If so… the same rules apply… if not… God help you.

FYI: I always fly with my passport these days… even for trips from STL to ORD. No better way to provide positive identification

dblack · #11 (**permalink**) 12-30-2009

Quote:

Originally Posted by tsquare

I ASSUME that like identity theft, there is somew way to 'fix' this.

Were it me, I'd talk with my lawyer. Then...

So, it sounds like you're relying on the rights and due process guaranteed us under the constitution. Yet you seem to be suggesting that suspected terrorists don't deserve those protections. What gives?

Maybe I'm misunderstanding your position.

Sunshine · #12 (**permalink**) 12-30-2009

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Originally Posted by iamwhatiseem

Part of the price.
Not having no fly list would result in the Christmas attack a regular occurrence...except successful.
Hmmm...lemme see...longer waits at the airport, inconvenience for some...or possible death of 1000's every year...hmmm.

I don't think anyone is suggesting NOT having a no fly list. But there needs to be some oversight to keep people who have no ties to terrorism from getting punished. Example: Common names-there needs to be a way to discern if you are keeping the RIGHT one off of a plane.

In the case of the Christmas bomber, I believe he had some clear ties to AQ. NO ONE and I mean NO ONE should be subject to this type of thing just on the word of someone calling up and claiming to be your mother with no further investigation.

Sunshine · #13 (**permalink**) 12-30-2009

Quote:

Originally Posted by Steve

We should always err on the side of caution.

Always.

If that ends up being inconvenient for some, well too bad...

Well the guy I know who can't fly because he has a duplicate name with someone on the list is named Steve. Not the bald one. Another one.

So you have 1/3 of the way there if you have 3 names. Yet again as is typical with you, implicit in your statement is the assumption that it couldn't POSSIBLY happen to YOU. SOME, but not YOU.

Sunshine · #14 (**permalink**) 12-30-2009

Quote:

Originally Posted by dblack

So, it sounds like you're relying on the rights and due process guaranteed us under the constitution. Yet you seem to be suggesting that suspected terrorists don't deserve those protections. What gives?

Maybe I'm misunderstanding your position.

The guy in the first link I posted didn't have any due process. His due process was a guy behind a desk.

Steve · #15 (**permalink**) 12-30-2009

Quote:

Originally Posted by Sunshine

Well the guy I know who can't fly because he has a duplicate name with someone on the list is named Steve. Not the bald one. Another one.

So you have 1/3 of the way there if you have 3 names. Yet again as is typical with you, implicit in your statement is the assumption that it couldn't POSSIBLY happen to YOU. SOME, but not YOU.

Were you planning on making a point somewhere along the line?

Lemme' ask you: You clearly have a problem with the "No Fly" list. Fair enough.

Let's say some guy named Bob Jones is on the list, because he's a known terrorist.

Now, let's say some guy named Bob Jones, who works in a convenience store in his hometown, finally saves enough money to take his family on vacation. He shares a general physical likeness to Bob Jones the terrorist.

How, while Bob Jones the convenience store guy is standing in the line at security, are you going to determine that he's not the Bob Jones on the No-Fly list?

Now, consider two people named Muhammed Al Hasim. One is suspected to have terrorist ties. The other is a peace-loving, tax-paying architect.

How are you going to differentiate between them?

Nowhere in my comments did I even come close to suggesting that it couldn't happen to me. But, even if that were to happen, the interests of safety and security should not take a back seat to my getting on an airplane...

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