November 2016 Bar Bulletin
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November 2016 Bar Bulletin

No Fly, No Buy, No Way

By Leah Snyder


The terrorist watch lists have done great harm to the rule of law both nationally and internationally. For example, the “No Fly List” is a covert, government blacklist used to deprive people of their right to travel, in blatant disregard of due process.

Despite this, numerous politicians have expressed their intent to expand the number of constitutional rights that may be suspended based on the No Fly List. Specifically, a new proposal would ban any person on the No Fly List from purchasing firearms. This effort to expand the No Fly List ignores the multitude of problems with terrorist watch lists in general and the No Fly List specifically.

Terrorist watch lists do not target people who have actually committed terrorist acts. Rather, such lists are intended to target possible future terrorists, which is an impossible task. It is not equivalent to finding a needle in a haystack; it is equivalent to finding a piece of hay in a haystack, which may one day become a needle. In a misguided attempt to solve this problem, the system is adding more hay to the stack.

The FBI’s Terrorist Screening Database (TSDB) is a massive central terrorist watch list. It grew from 158,000 people in 20041 to 680,000 people in 2013. This same massive expansion of TSDB also occurred with the No Fly List. In 2001, the No Fly List contained 16 people; by 2013, 47,000 were on the list.2

Despite this fact, most people believe that an innocent person could never end up on a terrorist watch list. But the terrorist watch list is intended to capture innocent people. A person does not need to be suspected, accused or charged of any crime to be added to the list. The general standard used to add names to terrorist watch lists is extremely lax.

The government is supposed to find “reasonable suspicion.” However, the standard of reasonable suspicion used in this context is unrecognizable. People may be added to a watch list due to:

• their membership in a foreign organization (not identified as having any terrorist connections);

• their name appearing in a Facebook or Twitter post;

• their name being used as a terrorist’s alias;

• their name being similar to that of a suspected terrorist;

• a relative’s presence on a terrorist watch list; or

• their travel to a foreign country.3

People may be added to the list en masse without “reasonable suspicion,” based on a number of protected classes, including age, sex, ethnicity, religion and race. Due to the lax standards, 40 percent of the 680,000 people on the TSDB in 2013 had “no recognizable terrorist group affiliations.”4 However, they remain on the list.

The No Fly List has similar issues. A reasonable person may believe that the smaller No Fly List would be more accurate. However, this is far from the truth. The list was recently leaked and included individuals such as musician Cat Stevens (a Muslim who no longer goes by that name), Sen. Ted Kennedy (deceased), Rep. John Lewis,5 actor David Nelson, international dignitary Nabih Berri (head of the Lebanese parliament), and Evo Morales, the president of Bolivia.

The No Fly List contains incredibly common names such as “Gary Smith,” “John Williams” and “Robert Johnson.” Many names appear without any other identifying information. CBS News spoke to a dozen people named “Robert Johnson,” who all reported trouble getting onto airplanes. They are routinely pulled aside and interrogated at airports, sometimes for hours.

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