Privacy SOS

Terror Tuesday: What do Kill lists and No Fly lists have in common?

Not much, you may think. Being barred from entering US airspace in the FBI’s Terrorist Screening Center bears no resemblance to being targeted for extinction in National Counterterrorism Center’s Disposition Matrix…or does it?

Both are forms of extrajudicial punishment in which courts are excluded. Both are compiled and maintained in utmost secrecy. Both demand a “just trust us” mind set excluding the possibility of human error. Both are placed beyond the reach of accountability. Both are undertaken in the name of ‘national security,’ and have the potential to metastasize, unchecked by the rule of law.

And who knows how easy it is for names to migrate from one list to the other. What additional data points make someone believed too dangerous to fly ready for what the CIA calls “prime time”?

Government officials may scoff – that’s not how it works! Well how DOES it work?

As drone bases expand into West Africa and the Department of Defense prepares to honor drone pilots with a new ‘Distinguished Warfare Medal,’ we learn what President Obama meant by those fine words about ‘transparency’ in his State of the Union speech.

Thanks to a Justice Department ‘white paper’ summary of a legal memorandum, we now know that “imminent” (as in “imminent threat”) does not mean “close at hand” or “impending” when it comes to drone strikes. And we know that the government has a contorted view of whether an arrest is “feasible” or not: where there may be a whiff of danger in carrying them out, arrests are deemed “infeasible.”

It now transpires that there are not just two secret legal memos justifying kill lists to which a handful of senators were briefly permitted access. There are reportedly “seven additional legal opinions on targeted killing sought by senators” and the White House has no intention of sharing them, even with members of the Intelligence Committee. So much for his State of the Union promise of keeping Congress “fully informed of our efforts.”

While the Obama Administration labors to keep the country in the dark, China has turned a spotlight onto its own drone program. Was the Chinese government thumbing its nose at the White House when it announced a few days ago that it was going to vaporize a murderous drug lord with a drone but decided to capture him instead?

The ‘good news’ about being on a No Fly list is that it may be humiliating, infuriating and incapacitating, but (as far as we know) it is not a death sentence.

The list of those who are prohibited from flying is swiftly growing. In early 2012 it was reported that 10,000 names had been added to the list in the previous year alone, bringing the total to more than 21,000. Five hundred of them are American citizens.

A further 400,000 people are on the ‘Selectee’ list of those to be given additional screening and maybe – or maybe not – kept off planes.

The best known ‘selectee’ was the late Senator Edward Kennedy, who, on at least four occasions in 2004, had trouble boarding a plane, reportedly because there was a ‘T. Kennedy’ on the selectee list. It took the personal intervention of then DHS head Tom Ridge to ease his flying experience.

Although (as with the Kill lists) the government will never confirm or deny someone is on a No Fly or Selectee list, it sometimes has to say something because the circumstances are so, well, embarrassing. For instance, when a toddler and her parents were forced off a Jet Blue plane because the (obviously innocent) kid was flagged as a ‘selectee,’ the TSA blamed a “computer glitch.”

But if you are an American Muslim male on a No Fly list, you have no claim to the ‘presumption of innocence’ and no way to clear your name. Take the case of Saadiq Long, a 43-year-old US Air Force veteran, who was yet again prevented from boarding a plane in Oklahoma City last Saturday.

Long is an African-American Muslim who has no criminal record of any kind and served ten years in the US Air Force. He would probably not have been in Oklahoma were it not for Glenn Greenwald, who last November described Long’s futile attempts to fly from Qatar (where he lived with his wife and two children and taught English) to Oklahoma to visit his sick mother.

Two weeks after the piece appeared, Long was able to board a plane in Qatar. As Greenwald wrote on February 9:

He took several flights to make the 20-hour journey, all without incident. He has remained in Oklahoma for the last ten weeks, visiting his family in the US for the first time in over a decade.

But now Long – unbeknownst to him – has once again apparently been secretly placed by some unknown National Security State bureaucrat on the no-fly list.

On February 6, Long went to Will Rogers Airport in Oklahoma City to fly back to Qatar. His lawyer had informed the FBI in advance of his travel plans in an effort to ensure there would be no problems.

When he arrived, he was denied a boarding pass and given no explanation. The TSA agent had this to say:

It’s my understanding this individual was denied a boarding pass by the airline because he was on a no-fly list. The TSA does not confirm whether someone is or is not on the no-fly list, as that list is maintained by the FBI.

In Greenwald’s words,

But what’s particularly infuriating here is that, if they had evidence that Long has done anything wrong, they easily could have arrested him at any point over the last ten weeks when he was in the US. The reality is that they could have arrested him at any time over the last decade because he has lived in three countries with highly US-loyal autocracies: Egypt, the UAE and Qatar. But he was never arrested, never charged with anything – just denied the basic right to travel.

And harassed.

Greenwald writes that

there should be no doubt of the FBI’s desire to harass Long. Although they never charged him with any crime or arrested him while he was in Oklahoma, he was, along with his sister, Ava Anderson, handcuffed and put on the ground the day after Thanksgiving after they drove to their local police department in fear when they noticed they were being followed. It turns out that the FBI had falsely told local police that Long and his sister were ‘fleeing felons’, but when the local police learned that was false, they never arrested Long or his sister….

So now he’s just in no-man’s land. He can’t contest the accusations against him because there are none. After being blocked for months from visiting his own country and his terminally ill mother, he’s now barred from returning to his home, his job, and his own family. All of this is done by his own government without a shred of due process, transparency or accountability.

In the view of his lawyer Gadeir Abbas:

What’s most alarming about Saadiq’s ordeal is that the FBI will never have to explain its actions. When it comes to separating Saadiq – and many others – from family via its ever-growing and always secret watch lists, the FBI is judge, jury and executioner. Saadiq hasn’t been indicted, charged or convicted of any crime. And yet the FBI has claimed for itself the power to impose permanent punishment upon Saadiq: life without air travel.

The ACLU has long sought to use the courts in the effort to prevent the FBI (and the President) from being ‘judge, jury and executioner.’

The case it filed back in August 2010 on behalf of other Americans who have been barred from flying – including two Marine Corps veterans and veterans of the Army and Air Force – has had a rough road. After the US Court of Appeals for the Ninth Circuit reversed a district court decision, the ACLU went back to Oregon District Court on February 19, 2013.

The ACLU declares that “it is unconstitutional for the government to put people on secret lists and deny them the right to travel without even basic due process.”

It is also unconstitutional for them to put people on secret lists and deny them the right to life without even basic due process.

The secret Kill lists and the No Fly lists compiled by unknown National Security State bureaucrats don’t just both undermine the Constitution. They make a mockery of our claim to live in a democracy in which the people have the ‘right to know’ what is being done in our name.

© 2021 ACLU of Massachusetts.