Making the No Fly List Fly: A Due Process Model for Terrorist Watchlists

By Florence, Justin | The Yale Law Journal, June 2006 | Go to article overview

Making the No Fly List Fly: A Due Process Model for Terrorist Watchlists


Florence, Justin, The Yale Law Journal


 
NOTE CONTENTS 
 
INTRODUCTION 
 
I. WATCH LIST-BASED SECURITY 
   A. The Value of Watchlists 
   B. The Expansion of Watchlists 
   C. How the Lists Work 
   D. The Current Process 
 
II. PRIVATE INTERESTS PROTECTED BY THE DUE PROCESS CLAUSE 
   A. Liberty To Travel 
   B. Employment as Liberty and Property 
   C. Stigma, or Reputation in the Community 
 
III. PROTECTING SECURITY AND LIBERTY: A MODEL PROCESS 
   A. Advance Airport Notice 
   B. Compensatory Counsel 
      1. The Government Interest in Protecting Information 
      2. The Private Interest in Access to Evidence 
      3. An Effective Balance 
 
CONCLUSION 

INTRODUCTION

What does Democratic Senator Edward Kennedy of Massachusetts have in common with Republican Congressman Donald Young of Alaska? Watchlists maintained by the United States government have kept them both from flying. In the spring of 2004, airline agents tried to block Senator Kennedy from boarding airplanes on five occasions because his name appeared on a federal terrorist watchlist. (1) In September 2004, Young faced similar frustrations when he attempted to catch an Alaska Airlines flight. (2)

These members of Congress are not alone. Since 9/11, the U.S. government has placed thousands of American travelers on the No Fly List (3) as part of a massive security initiative that affects all of the nearly seven hundred million passengers who fly within the United States annually. (4) The government performs watchlist-based security threat assessments on each of these airline passengers, as well as millions of other individuals employed in the transportation industry, by checking each passenger's or employee's name against one or more terrorist watchlists. (5)

These measures make sense for security purposes, but have a pair of troubling side effects: People may be listed by mistake, and once on a list it is not easy to get off. It took Senator Kennedy several phone calls to high level officials in the Department of Homeland Security (DHS). As Kennedy said at a Judiciary Committee hearing: If the DHS has "that kind of difficulty with a member of Congress, how in the world are average Americans, who are getting caught up in this thing, how are they going to be treated fairly and not have their rights abused?" (6)

In December of 2004, in response to a recommendation of the 9/11 Commission, Congress included in the Intelligence Reform and Terrorism Prevention Act (IRTPA) of 2004 a brief clause requiring that the Transportation Security Administration (TSA), the division of DHS responsible for the transportation sector, "establish a procedure to enable airline passengers, who are delayed or prohibited from boarding a flight" because the watchlist showed they might pose a security threat to "appeal such determination and correct information contained in the system." (7) The Act, however, did not give specific guidance to the agency or require a formal hearing, nor did it cover transportation-sector employees affected by watchlists.

The agency has yet to act. The government has objected that granting watchlisted individuals the core elements of due process--notice and a fair hearing--would threaten transportation security arid require disclosure of classified information. But a fair process need not do so. Drawing on the Supreme Court's invitation to develop narrowly tailored procedures, and programs designed by Congress in other contexts, this Note proposes a balanced approach that would allow for pretravel clearance and a fair hearing for travelers and employees alike, without endangering homeland security. (8)

The Note proceeds in three Parts. Part I briefly describes the value of terrorist watchlists and how they are created. Part II argues that travelers and transportation employees adversely affected by watchlists are entitled to due process because of their constitutional liberty interests in travel, employment, and avoiding the stigma of being identified as a potential terrorist. …

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