Papers Please Has Something To Tell You About The 'No Fly' List And It's Going To Make You Sad

from the more-Douglas-Adams-than-George-Orwell-tbh dept

How does someone end up on the federal government's "no-fly" list? You'd think the shorter, less-convoluted question would be how one avoids ending up on this list. Unfortunately, the answer to either question is a convoluted mess -- one complicated unnecessarily by the number of federal agencies that think they should have a say in who lives and who flies.

Papers Please has attempted to explain the no-fly list and its parameters. And it has kind of failed, albeit through no fault of its own. The interconnectedness of government things -- the wheels of which were greased with countless pieces of post-9/11 legislation, memoranda of understanding, data-sharing agreements, and the insistence of numerous agencies that they, too, were important cogs in the War on Terror Machinery -- has made this almost impossible to parse.

Behold your tax dollars at work preventing you from flying:

If you can't see the embed, here's an annotated PDF version.

There were demands -- some made by the incoming President's people -- that participants in the Red Hat Insurrection should be added to the no-fly list. Bad idea. The no-fly list has been abused for years and it's not getting any better. Courts may be coming around to the fact that arbitrary federal-level decisions with almost zero recourse isn't what America's all about, but if change is coming, it will be slow, expensive, and stymied constantly by invocations of the "national security" mantra.

Here are some of the facts. The FBI has used the no-fly list as leverage to turn Muslims into informants so it can more easily score empty net goals against supposed "terrorists" too poor to buy terrorist supplies and too mentally incompetent to formulate an attack plan, much less draft their own statement of ISIS allegiance.

The feds' belated focus on domestic extremists doesn't excuse years of projecting a presumption of guilt on Muslims just because some extremists decided to fly planes into buildings. But the presumption of guilt continues -- encompassing pretty much any American who desires to board a plane.

Airlines aren't much without passengers. So it's in their best interest to sell as many tickets as possible and board as many people as possible. Their default assumption is everyone's good to fly unless proven otherwise. The government has taken an opposing stance, presuming everyone guilty of latent terrorism.

[F]ly/no-fly decision-making by airlines differs from that of the U.S. government in two major ways.

First, for an airline the default is generally “Yes”, whereas for the U.S. government, as discussed above, it has been “No” since at least 2008. If you have a ticket, you look more or less alive and human, your clothing covers your “naughty bits”, and you don’t break any rules (more on that below), the airline will generally let you on the plane. You don’t (usually) have to prove that you aren’t a terrorist.

This creates friction -- something exacerbated by the TSA, which operates under its own rules and has been granted considerable discretion to ground passengers and/or subject them to multiple levels of increasingly invasive screening.

If no flags fly, passengers can attempt to board a plane. But airlines are also given a lot of discretion about whom to serve -- something most private companies enjoy.

Second, airline procedures generally involve a greater degree of human discretion and judgement on how to interpret and apply the fly/no-fly criteria. Airlines would say that this allows flexibility (sometimes good) but it also allows arbitrariness (bad). For better or worse, whether you are allowed to fly can depend on a gate agent’s temper and mood.

International flights further complicate matters by adding new laws and agencies to the mix. Considering what's going on behind the scenes, it's a miracle airlines have been able to fill planes with passengers over the last decade.

As noted earlier, placement on a no-fly list is almost impossible to challenge. The government -- mainly the DHS -- has argued no-fly list status isn't something anyone's entitled to litigate. The placement occurs without court involvement. So, the DHS apparently feels the exclusion of court review during placement demands exclusion of court review after placement. Since there's very little court intercession, US agencies have continued to add people to no-fly lists for almost no reason at all.

Challenging no-fly status is incredibly expensive. A couple of court cases have managed to poke some holes in the government's arbitrary groundings. But it takes deep pockets to take a lawsuit far enough that high-level courts express their concerns about the constitutionality of no-fly lists.

Only one no-fly case has gone to trial, resulting in something of a Pyrric victory: After eight years of litigation, Dr. Rahinah Ibrahim found out that she was put on the no-fly list because the FBI agent who interviewed her as part of his mosque-watching assignment misunderstood how to fill out the blacklist and watchlist “nomination” form. Dr. Ibrahim’s name was taken off that list. But her U.S. visa was revoked (despite the fact that her children were born in the U.S. and are U.S. citizens), and she hasn’t been able to return to the U.S.

Dr. Ibrahim’s pro bono lawyers incurred almost $4 million in expenses to overcome what the 9th Circuit Court of Appeals described as “scorched earth” and “bad faith” litigation tactics by the government. It took the lawyers another seven years to get paid, (finally, last month, fifteen years after they started working on the case) after the government appealed the fee award all the way to the Supreme Court.

Other cases have bubbled up to this level, but have yet to secure courtroom victories. The expenses incurred in these long-running legal battles are likely on par with this effort -- one that took seven years (and more litigation) to get repaid.

All of this leads to the current situation, where irresponsible lawmakers are leveraging unprecedented actions and political animus to call for a federal level fucking of Americans who did stupid stuff and will -- in many cases -- end up facing federal charges.

We find it especially ironic that calls to deploy measures like extrajudicial no-fly orders are being made by politicians who profess to be those most committed to the rule of law. The current no-fly system, as should be apparent from the description above, is the antitheses of the rule of law, and epitomizes the lawlessness of the DHS in particular.

Does everyone convicted of a crime belong on the no-fly list? If so, for how long after their conviction? What about people suspected or accused of crimes? And why shouldn’t these decisions be made by judges?

Why should we focus on air travel, anyway? Surely those who came to Washington by air were less likely to have brought firearms or explosives than those who came by car.

The no-fly list should not be an all-purpose weapon to be deployed against anyone who's acted irresponsibly and/or criminally. The no-fly list probably shouldn't be used at all against anyone, but if it is going to remain active, it should only target known terrorists the government can definitively show would endanger the nation if they were allowed to fly. The list should be short and targeted. Instead, it's become a catchall for everyone the government is unsure of, as well as a receptacle for Muslims the government failed to turn into informants. Adding alleged domestic terrorists to the list is unwise, as most of those raiding the Capitol committed crimes of opportunity, rather than premeditated acts of terror.

Papers Please has made an admirable attempt to explain the no-fly list and how it operates. But much of its underlying legal rationale remains obscured, buried by national security invocations and unjustified claims that explaining the system would somehow allow people to avoid it. It's an unavoidable -- and mostly unchallengeable -- part of American life at this point. And it's never going to get better if opportunistic politicians continue to believe it's something necessary to secure the nation against all threats domestic and foreign.

Hide this

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: civil liberties, civil rights, doj, fbi, no fly list


Reader Comments

Subscribe: RSS

View by: Thread


  • identicon
    Glenn, 28 Jan 2021 @ 4:45am

    So, it's the infamous "you can't get there from here" paradox.

    reply to this | link to this | view in chronology ]

  • icon
    PaulT (profile), 28 Jan 2021 @ 4:57am

    "You don’t (usually) have to prove that you aren’t a terrorist"

    Which is fortunate, since it's impossible to prove a negative.

    "Second, airline procedures generally involve a greater degree of human discretion and judgement on how to interpret and apply the fly/no-fly criteria."

    Hmm... I get the issue with things being unequally applied, but there's many reasons why airline staff can refuse to allow you to board even if you're not on the list. There's examples of places where this can be helpful (the person on the no fly list is a toddler and so obviously isn't the person meant to be flagged) and places where it's not (the guy who ingratiates himself with the gate agent talks them into ignoring their inclusion).

    But, i can equally see times where they just use the list as an excuse not to deal with a particularly annoying passenger.

    "Surely those who came to Washington by air were less likely to have brought firearms or explosives than those who came by car."

    Sure, but those aren't the only things that someone can do to cause major damage or disruption. While the list exists expressly to avoid another 9/11, there's other problems to consider that don't apply to private road travel.

    "most of those raiding the Capitol committed crimes of opportunity, rather than premeditated acts of terror"

    Sure, which makes them somewhat prone to lashing out and makes them a risky passenger. Sure, they won't be blowing the plane up, but getting into a fistfight mid-air with other passengers they overheard talking shit about the insurrection attempt, causing staff to be injured and the plane diverted to eject him?

    I understand most of the concerns here, and the entire system does need to be overhauled and hopefully replaced. But, until then, I'm still unconvinced that airline staff being able to exercise direction or disallowing passengers that are a high risk of being disruptive in-flight is one of the major concerns.

    reply to this | link to this | view in chronology ]

  • icon
    hij (profile), 28 Jan 2021 @ 5:21am

    Leave CENTOS out of this!

    I read the phrase "Red Hat Insurrection," and my first reaction was to avoid reading further to avoid some screed about the changes coming to CENTOS. Until now I have managed to keep separate the whole MAGA hat thing and RedHat.

    reply to this | link to this | view in chronology ]

    • icon
      Samuel Abram (profile), 28 Jan 2021 @ 6:21am

      Re: Leave CENTOS out of this!

      I guess thanks to the insurrection, "Red Hat" has the same connotation of "Violent White Supremacist" that "Swastika", "Nazi", and "Confederate" have.

      We can't have nice things anymore thanks to those violent white supremacists.

      reply to this | link to this | view in chronology ]

      • identicon
        Baron von Robber, 28 Jan 2021 @ 6:54am

        Re: Re: Leave CENTOS out of this!

        Well buying a red MAGA hat is much cheaper than ruining a set of fine white bed sheets and pillow cases.

        reply to this | link to this | view in chronology ]

      • icon
        nasch (profile), 28 Jan 2021 @ 10:33am

        Re: Re: Leave CENTOS out of this!

        I have a red Red Hat baseball cap (a red Red Hat hat if you will). I didn't think about whether I can still wear it in public without being mistaken for a MAGA idiot.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Jan 2021 @ 8:46am

      Re: Leave CENTOS out of this!

      Personally I refer to them as Redcap asfter the murderous goblin. It fits them so well too.

      reply to this | link to this | view in chronology ]

  • icon
    aerinai (profile), 28 Jan 2021 @ 5:49am

    Let's start here for racial inequality

    If Biden is committed to racial equity and removing systemic racism from our systems -- he should pop his head in on the No Fly List and see the ethnic breakdown.

    ... and for the record... adding more white people isn't my proposed fix, though leave it to the government to come up with that as their takeaway!

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 28 Jan 2021 @ 6:12am

      Re: Let's start here for racial inequality

      Nah, the whole thing is messy enough without some pathetic attempt to pretend that adding insurrectionists to the list was a racial move.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Jan 2021 @ 8:26am

    Sadly, the fastest way to end the no fly list is to put a bunch of white people on it.

    reply to this | link to this | view in chronology ]

  • identicon
    anon but not Q, 28 Jan 2021 @ 9:44am

    "The feds' belated focus on domestic extremists doesn't excuse years of projecting a presumption of guilt on Muslims just because some extremists decided to fly planes into buildings."

    You're right, I think skin colour and/or religion are terrible selectors, but if you march and hold up a sign that says 'death to $country', then that country should be allowed to drop a handful of guided lug nuts on you from 50000 feet.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Jan 2021 @ 11:32am

      Re:

      Summary execution of yourself and anyone unlucky enough to be in the blast radius for the heinous crime of shooting your mouth off.

      If it's all the same to you, I'd rather not live in your kind of world.

      reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 28 Jan 2021 @ 12:42pm

      if you march and hold up a sign that says 'death to $country', then that country should be allowed to drop a handful of guided lug nuts on you from 50000 feet

      Yes or no: If that person happened to be a citizen of that country who was protesting in that country, should the government respond to the protester with domestic military warfare?

      reply to this | link to this | view in chronology ]

  • icon
    Upstream (profile), 28 Jan 2021 @ 12:07pm

    National security has been indiscriminately used as a weapon by the government for a long time now, to seriously harass and imprison people for no valid reason, to incriminate whistle-blowers, to cover up government crimes and general wrongdoing, etc. It has become a "magic phrase" to enable the implementation of countless authoritarian policies. Regardless of Ben Franklin's original quote or it's meaning at the time, exchanging liberty for a false sense of safety or bogus claims of national security is a bad deal. But, as others have mentioned, there is no end in sight for this dangerous nonsense.

    Worse, anyone questioning the government's use of this dangerous weapon stands a good chance of becoming a victim of it.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Jan 2021 @ 3:46pm

    The no-fly list probably shouldn't be used at all against anyone, but if it is going to remain active, it should only target known terrorists the government can definitively show would endanger the nation if they were allowed to fly. The list should be short and targeted.

    No. If a person's dangerous enough that a judge is convinced they'll endanger air passengers, that's why we have fucking arrest warrants. We can even offer rewards to TSA agents who execute these warrants.

    To call someone a "terrorist" when they've not actually committed any arrestable offense is just name-calling. Individuals can use freedom of speech to do that, but the government has no place doing it.

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 29 Jan 2021 @ 3:39am

      To call someone a "terrorist" when they've not actually committed any arrestable offense is just name-calling.

      I hope you’re okay with the government labelling Redcaps who participated in the insurrection as “terrorists“.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 29 Jan 2021 @ 7:48am

        Re:

        In what world is armed insurrection not an arrestable offense? Committing criminal acts to scare people in an attempt to influence public policy is terrorism.

        reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 29 Jan 2021 @ 5:12am

      Re:

      I agree with the sentiment, but I also don't think that sitting on information about people who might be a danger to hundreds of passengers is a good thing either. There needs to be a middle ground between "this person can never fly under any circumstances" and "do not tell anyone about the risk of allowing this person onboard". There are many stories where a terrorist or other act has been committed by someone who had not been arrested for whatever reason, but was still free to go out and commit an atrocity even though they were a known risk to authorities.

      What qualifies as "risk" and how it's communicated and actioned is probably going to be a long conversation without any answer that satisfies everyone, but it's certainly one that needs to be had.

      "To call someone a "terrorist" when they've not actually committed any arrestable offense is just name-calling"

      So, to give a random example - Tamerlan Tsarnaev was known as an Islamic radical with ties to possible terror plots and even involvement in a multiple murder, but nothing to arrest him on before a certain day in 2013, and was known to both the FBI and Russian authorities. Would it have been better to have called him names by alerting Boston authorities about him, or better to just leave him alone, had they flagged him correctly? What about if he had decided to do what he did on his flight back from Russian instead of waiting till he was back on US soil?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 29 Jan 2021 @ 8:07am

        Re: Re:

        Would it have been better to have called him names by alerting Boston authorities about him, or better to just leave him alone, had they flagged him correctly?

        This kind of proves the point, doesn't it? How would it have helped anyone to put Tsarnaev on the no-fly list? He blew up people on the ground, and not in an airport.

        Known ties to terrorism would justify police surveillance, and I don't count that as mere name-calling (unlike people on the no-fly list, when nobody knows why they're on the list). It's hard to believe they could get search and/or arrest warrents. There's nothing wrong with alerting the TSA, but if the person passes security checks, it doesn't justify keeping them off a plane. They can send an air marshal if they're really worried.

        The no-fly list is an attempt to paper over failures in TSA's airline security program. The government doesn't want to look bad if someone passes all security checks, blows up an airplane, and then the press finds out they "should have known". That's all, just like sex offender lists. And courts have been letting them get away with it, while the government knows they wouldn't tolerate people like Tsarnaev being added to "no-walk lists" etc.

        There's no evidence the TSA improved airline security. There is evidence, however, that it has raised overall death rates by causing people to avoid flying in favor of more dangerous options. We'd be better off rolling back to pre-9/11 airline security, and putting all the post-9/11 extra budget into properly investigating ties to terrorism.

        reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Close

Add A Reply

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Follow Techdirt
Special Affiliate Offer

Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads
.

This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it
Close

Email This

This feature is only available to registered users. Register or sign in to use it.