Days ago in Portland, Oregon, a federal attorney answered questions posed by Judge Alex Kozinski in a hearing about the government’s classified watch lists for suspected terrorists, like the one colloquially referred to as the “No Fly List.” The ACLU has challenged the list on behalf of clients who think they’re on it for reasons unknown to them and would like the chance to demonstrate they don’t belong there. The problem? Federal authorities have set up a Kafkaesque system where you never get to know anything about why you’re denied permission to fly.
Chief Judge Alex Kozinski had a simple question for the government attorney: What would you do if you found yourself on the No Fly List? After some hemming and hawing, the attorney said that he would seek “redress” from the Department of Homeland Security—even though DHS does not place people on the No Fly list and has no authority to remove them (that’s the FBI’s job). Because, the lawyer conceded, DHS would not be able to confirm or deny whether he was on the list, he would then seek review in a federal appellate court. And what would the court be able to do?, asked Judge Kozinski. Not much, said the government lawyer. In fact, the lawyer would not even concede that a federal court possessed the authority to order someone removed from the No Fly List. In other words, according to the United States government, the only redress that is available to a watch-listed citizen is to hope that some government bureaucrat will correct a mistake or change his mind.
For fun, I clicked over to the FBI’s Frequently Asked Questions webpage about the No Fly List. Let’s learn together:
Can I find out if I am in the TSDB? (That’s Terrorist Screening Database)
The TSC cannot reveal whether a particular person is in the TSDB. The TSDB remains an effective tool in the government’s counterterrorism efforts because its contents are not disclosed. If TSC revealed who was in the TSDB, terrorist organizations would be able to circumvent the purpose of the terrorist watchlist by determining in advance which of their members are likely to be questioned or detained.
I am having trouble when I try to fly or cross the border into the United States. Does this mean I am in the TSDB?No. At security checkpoints like our nation's borders, there are many law enforcement or security reasons that an individual may be singled out for additional screening. Most agencies have redress offices (e.g., Ombudsman) where individuals who are experiencing repeated problems can seek help. If an individual is experiencing these kinds of difficulties, he/she should cooperate with the agency screeners and explain the recurring problems. The screeners can supply instructions on how to raise concerns to the appropriate agency redress office.
So they won’t tell you if you’re on the list, and if you’re denied the ability to fly you could be on it ... but then again, not necessarily, because other government agencies have their own secret blacklists.
This is my favorite question and answer:
How does TSC ensure that the TSDB is accurate?
The TSC has a staff dedicated to redress and quality assurance that conducts comprehensive as well as case-specific reviews of TSDB records to ensure they are current, accurate, and thorough. TSC conducts research and coordinates with other federal agencies to ensure the terrorist record is as complete, accurate, and thorough as possible. TSC’s redress and quality assurance process has resulted in the correction or removal of hundreds of records in TSDB.
That they made hundreds of mistakes on their terrorist list is supposed to make us feel better because eventually they were corrected. A handy link is also offered to the “Redress Procedures” webpage.
My favorite part of that page:
Filing a Redress Inquiry
The TSC does not accept redress inquiries directly from the public. Instead, members of the public should contact the relevant screening agency with their questions or concerns about screening.
Another passage that is supposed to be reassuring appears over at the Department of Homeland Security website:
Many people erroneously believe that they are experiencing a screening delay because they are on a watchlist. In fact, such delays are often caused merely by a name similarity to another person who is on the watchlist. Ninety-nine percent of individuals who apply for redress are not on the terrorist watchlist, but are misidentified as people who are.
So in addition to the hundreds of people put on the list wrongfully and eventually rescued and the unknown number of people who are on it wrongfully to this day, there are thousands more American citizens made so paranoid by their own government that they’re convinced they are on a terrorist list, which the government will neither confirm nor deny. I’m with J.D. Tucille: “Invoking Kafka tends to draw the oh-so-jaded cliché police, but it seems appropriate enough here.”