The Ultimate No-Fly List

  It receives no mention in the Constitution although, to most Americans, it is a basic "right" that should be enjoyed by all citizens. It is the ability to travel freely.

Notably, that specific right was enumerated in the Articles of Confederation that originally united the country. Why was it left out of the Constitution? Some scholars now think that the Framers may have considered it a right so fundamental that they simply thought it unnecessary to include in our founding document.

Indeed, the First Amendment wouldn't mean much without it. Speech would be far less free if you couldn't travel to the place where you intend to practice it. The free press would be severely circumscribed without reporters' liberty to travel where they must go in order to get the story. And what would be the point of freedom of assembly if you could be prohibited from reaching the point of assembly?

Over time, the Supreme Court has--while recognizing some restrictions having to do with travel to enemy nations--endorsed the principle.

In U.S. v Guest (1966), the Court noted that the freedom to travel "is a right that has been firmly established and repeatedly recognized." Three years later, in Shapiro v Thompson, Justice Potter Stewart wrote in his concurring opinion that travel "is a right broadly assertable against private interference as well as governmental action. Like the right of association, [...] it is a virtually unconditional personal right, guaranteed by the Constitution to us all."

Not anymore.

For the past twenty years, Americans' right to travel has been steadily eroded. The original secret "no-fly" lists date back at least to the first Bush Administration. In the name of the War on Drugs, persons buying airline tickets with cash are routinely treated as criminal suspects, are often detained, and sometimes face seizure of their money. Under Bill Clinton, the ability to travel anonymously was curtailed when picture IDs became demanded by ticket agents.

Interestingly, while travelers now accept that such IDs are required before one can board an airplane, in actuality this isn't true. You may instead submit to a more thorough search of your person. Most fascinating of all, the "regulation" regarding the submission of ID is secret. That's right, secret. As in: unavailable to you and me, or our attorneys.

Libertarian millionaire John Gilmore, co-founder of the Electronic Frontier Foundation, challenged this requirement in Gilmore v. Gonzales. Gilmore demanded to see a copy of the regulation under which he was denied boarding privileges for a California-to-Washington, D.C. flight after refusing to either show his ID or agree to the expanded search. The Justice Department countered that it could identify the secret law only under seal, for benefit of the 9th Circuit Court of Appeals, which was hearing the case. But Justice would not make a copy available to Gilmore's lawyers, nor permit any public disclosure of its contents.

Gilmore argued that he was on his way to the nation's capital in order to exercise his First Amendment right to petition the government for a redress of grievances, and that no one had the authority to interfere with his journey. He lost in District Court, which ruled that he had "numerous other methods of reaching Washington." Then, in January, he lost in Circuit Court, which concurred that, "the Constitution does not guarantee the right to travel by any particular form of transportation." Presumably, if Gilmore had a beef with the secret reg, he could always walk.

Whether Gilmore appeals to the Supreme Court remains to be seen, and even if he does there seems little chance that this particular, Executive-friendly court would force Justice to bring the secret law into the open.

But in the meantime, we are about to be treated to yet another curtailment of our travel right (or privilege, if you wish): the ultimate no-fly list. Who's on it? Everyone.

Apparently, the current no-fly procedure is inadequate to the purposes of the Homeland Security Department (DHS). As it now stands, airlines check passengers' names against a list provided by DHS that contains strict no-fly designations, as well as "selectees" who are required to pass higher-level security measures. The combined list, according to information leaked by European airlines, was 80,000 long in late 2005.

After January 14, 2007, if new proposed DHS rules are implemented, the no-fly list provided to airlines will disappear. In its place will be a new regulation, by which airlines, cruise ships, and some other public carriers will have to submit a complete passenger list to the Customs and Border Patrol (CBP) before departure, as opposed to current CPB requirements that a manifest be filed afterward. Your personal check will then be conducted in the darkness of cyberspace.

The reg says: "CBP has concluded that the prevention of a high-risk passenger from boarding an aircraft is the appropriate level of security in the commercial air travel environment. Manifest data received and vetted prior to passenger boarding will enable CBP to attain this level of security ... [eliminating] the need for passenger carriers to conduct watch list screenings of these passengers, upon publication and implementation of a final rule. Accordingly ... CBP is proposing two transmission options for all carriers to select from at their discretion: (i) the submission of complete manifests no later than 60 minutes prior to departure or (ii) transmitting passenger data as individual, real-time transactions, i.e., as each passenger checks in, up to but no later than 15 minutes prior to departure. Under both options, the carrier will not permit the boarding of a passenger unless the passenger has been cleared by CBP." [Emphasis ours.]

Seagoing vessels will also have a 60-minute window within which to comply. In all cases, non-compliance means no departure.

How can you find out if you're on the deny-boarding list? You can't. How many names are there? Secret. What are the grounds for inclusion? Sorry, that's secret, too. Can you petition the government to change your status? Nope.

Thus, even if you are a law-abiding citizen with a valid passport, you may be denied the ability to travel without ever knowing why. The clearance procedure is an administrative one, made secretly, with no right of appeal. All decisions are arrived at without warrants, probable cause, or even acknowledged grounds for suspicion.

Here's the nightmare scenario: You're in a dump of a Third World country, preparing to return to the U.S., passport in hand, when you're suddenly bounced because the airline was informed that you're on the no-board list. No reason given. Now you're stuck there, in some miserable detention center, not knowing when or if you'll ever make it home. If you're lucky and have some help stateside, the problem could be cleared up without too much fuss. If not . . .

Will this onerous new regulation be implemented in January? Well, like so many infringements of liberty that have happened during the past few years, this whole program has proceeded out of the public view, with no mandate from the people or Congressional involvement. And given that experience, we wouldn't bet against it.

On the other hand, the airline industry is strongly opposed, arguing that the proposals would cost countless billions, would cause disruptive system-wide schedule changes, would require major reprogramming of departure control and reservation systems, and will take far longer to put in place than the six months estimated by DHS.

There is also the possibility that the new Democratic leadership in Washington will take a closer look at developments like this, and demand some oversight. But right now, we would rate the likelihood that the ultimate no-fly list proceeds as planned as at least fifty-fifty.

So, perhaps the better question to ask is: if the DHS has its way, will the American people even hear about it? Don't count on it.

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Posted 11-28-2006 5:36 PM by DougHornig