The No-Fly List

If anything is different after 9/11, it’s air travel, as passengers endure long lines and extra security checks at airports. For some passengers and would-be passengers, though, air travel has become something much more harrowing, as the Transportation Security Administration targets political activists for harassment.

For months, the TSA, a federal agency established a year ago to protect the nation’s transportation system from terrorism, denied it had a blacklist of people to be singled out by security staff for special inspection and questioning. But in mid-November, in an interview with this reporter, spokesman David Steigman acknowledged that the government has “a list of about 1,000 people” who are deemed “threats to aviation” and not allowed on airplanes under any circumstances.

Steigman added that the TSA itself has no guidelines defining who is put on the list, but rather relies on names provided by other federal agencies, such as the FBI, Secret Service or INS. The TSA also has no procedures for people to clear their names and get off the list.

It appears, however, that this is only part of the story. Most of those who have been singled out for special interrogation and searches of their luggage and their persons, at least those who have gone public with their experiences, clearly are not “threats to aviation.” Indeed, many have been ardent advocates of nonviolence.

Consider the experience of John Dear, a 43-year-old Jesuit priest, member of the Catholic peace group Pax Christi and former executive director of the Fellowship of Reconciliation, an interfaith global peace organization. “I fly just about every week,” Dear says. “Since 9/11, I’ve been taken aside at the boarding gate every single time and searched and questioned.”

He describes one particularly disturbing experience. “I got to the Southwest Airlines gate at the San Jose airport, on my way to Los Angeles, but as soon as the attendant saw my boarding pass, he shouted, “You can’t be here. You have to be searched!”

“Everyone’s jaws dropped, and all the passengers backed away from me,” he recalls. The flight was delayed while Dear was taken aside and minutely searched, with more than 100 passengers looking on nervously.

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Others, like the Green Party’s Nancy Oden, have reported being detained by armed soldiers, or, like Green Party leader Doug Stuber, questioned by Secret Service agents, sometimes at such length that they missed their flights. In most cases, they ultimately were permitted to fly to their destinations.

Asked if such people are considered “threats to aviation,” Steigman said no. He speculated that they might have gotten on the list because they committed federal felonies. Some do have records. In Dear’s case, he went to jail for ceremonially whacking an F-15 jet with a hammer in an act of civil disobedience.

But none of the people whose cases In These Times has examined had any history of violence that would suggest they might be a threat to airline safety. Indeed many, like Dear, are ardent pacifists. What they seem to share is opposition to the Bush administration’s war policies and its attack on civil liberties.

So what is going on here?

Asked if the TSA has a second list, one not of the “threats to aviation” who would never be allowed to get on a plane, but rather of political activists who are to be singled out for intense scrutiny and interrogation, Steigman said, “I don’t know. I’ll have to look into that.”

A day later, he came back with a curiously candid, if rather alarming, answer. “I checked with our security people,” he said, “and they said there is no second list.” Then, after a pause, he added, “Of course, that could mean one of two things: Either there is no second list, or there is a list, and they’re not going to talk about it for security reasons.”

Some of those who have been stopped for special scrutiny by TSA agents in recent months have been specifically told that their names were “on a list.” Last spring, Virgine Lawinger, a 74-year-old nun and a member of Peace Action, was stopped at the Milwaukee airport along with some 20 other members of the group on their way to Washington to lobby the Wisconsin congressional delegation against military aid to Colombia. She says they were told at the time by local sheriff’s deputies and Midwest Express ticketing personnel that one or several of them were “on a list,” and that the TSA had instructed airport security to keep the group off the plane.

Lawinger, with the help of the local ACLU, filed a Freedom of Information request with the TSA in early October, seeking to learn why she had been barred from her flight. A month later, word came back that the TSA had a file on her, though all the pages were withheld except for a copy of a news clipping from the local paper reporting on her experience at the airport. It isn’t known whether the other information in Lawinger’s TSA file contains information predating the airport incident.

Barbara Olshansky, assistant legal director of the Center for Constitutional Rights (CCR) in New York, reports that she has been stopped and searched every time she has flown since 9/11. On three of those occasions, she was forced to pull down her pants in view of other travelers. One of those times, when she demanded to know why she was being singled out, the airline agent at the gate threatened to bar her from the plane if she raised a fuss and added brusquely, “The computer spit you out. I don’t know why, and I don’t have time to talk to you about it.”

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While few would object to the TSA’s maintaining a properly compiled list of genuine “threats to aviation” or preventing such people from boarding planes, it would appear that such a “no fly” list is not the one leading to all the harassment of political activists, who, after all, usually do get to fly.

Nancy Chang, a senior litigation attorney at the CCR, who also has been singled out for searches and questioning at the airport, says the government is “leveraging legitimate air safety concerns into a program that targets law-abiding Americans for questioning and detention based on their political viewpoints.”

Father Dear agrees. “I think what they are doing is harassing people who are opposing the war and publicly speaking out against administration policy,” he says.

One hint that this may be what is going on was provided to the Green Party’s Stuber. When the Secret Service agents called in by the TSA security guards arrived at Raleigh-Durham Airport to interrogate (and run a retina scan on) him, he says they came armed with a loose-leaf binder, which they left open near him as he was being questioned. On an open page, he claims he was able to discern a long list of progressive political organizations. Among those he was able to make out clearly on the list: the Green Party, Greenpeace, Earth First! and Amnesty International. Since his interrogation in October, Stuber, an art dealer, says he has been unable to get onto a plane.

Confirmation of a TSA travel blacklist is particularly troubling to civil-liberties advocates, because the names of people to be subjected to extra security investigation are being made available to private companies. Airline computers at airport boarding gates are flagging people. These lists are not being closely held within the national security or law-enforcement files, but are apparently being widely dispersed.

In fact, this seems to be the new privatization approach of the administration when it comes to Homeland Security. The Wall Street Journal reported that the FBI made its list of people with even remote links to terrorism—having associated, perhaps inadvertently, with a terror suspect, for example—available to a wide range of private companies, from banks and rental-car companies to casinos.

Says CCR’s Olshansky: “It’s bad enough when the federal government has lists like this with no guidelines on how they’re compiled or how to use them. But when these lists are then given to the private sector, there are even less controls over how they are used or misused.” Since airlines have always had the right to decide whether someone can board a plane, she observes that providing such a list to an airline represents a “tremendous chilling of the First Amendment right to travel and speak freely.”

This week, the CCR announced that it is considering a lawsuit against the TSA. A number of those whose travel has been interfered with have signed on as possible plaintiffs, and CCR is inviting those with similar experiences to contact them. Meanwhile, the ACLU has posted a no-fly complaint form to fill out on its Web site for those who are harassed or prevented from flying.

Calling the existence of such travel blacklists “an obvious and egregious violation of the First Amendment, because it permits both discrimination against a particular viewpoint and because it is a prior restraint on Americans’ right to travel,” CCR Legal Director William Goodman says, “the U.S. government appears to be targeting citizens because of their beliefs.”