Taking Liberties: The War on Terror and the Erosion of American Democracy (13 page)

Under the dragnet principle, the agencies involved with aviation security have been far more concerned with adding names of the potentially guilty, especially at times of heightened public concern, than with finding ways to remove the names of the innocent. It took a special act of Congress in July of 2008 to finally remove the name of Nelson Mandela, who spent many years on the watchlist because of his connection with the African National Congress, which prevailed in an election making him President of South Africa in 1994.
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This disturbing level of inaccuracy does nothing to enhance our safety but it does compromise a number of constitutional rights, including the right to due process. American travelers are denied the right to fly within the United States without being given any real opportunity to correct mistakes. If you find that a name resembling yours is on a watchlist, how do you prove that you are not a terrorist if you are over eight years old and not a U.S. senator? And if it is indeed your name that was put on the watchlist, how can you clear yourself if you’re not told what caused your name to appear on the list and therefore have no chance to rebut false rumors or to point out grudges, biases, or unpopular positions that might have led to your being targeted? As Americans, we are accustomed to the idea that we are innocent until proven guilty. But post-9/11 dragnets tend to focus on prevention rather than punishment. One consequence of this shift to a prevention paradigm, as experience with the material support laws has shown,
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is that due process has gotten lost. Prediction is an unreliable basis for punishment or other government-imposed hardships.
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And the individual is left to persuade the government that he is not
that
T. Kennedy if he wants to board a plane.

More than the right to travel can be at stake. At least one law-abiding American had to find a way to convince a faceless bureaucracy to remove him from a watchlist in order to keep his job. Erich Scherfen is an American citizen and Persian Gulf War veteran. He was a frontline infantryman and paratrooper and, after his honorable discharge from active duty, he served as a helicopter pilot for the National Guard. (He flew a Cobra attack helicopter and had a secret security clearance.) Beginning in 2006, he found himself being detained and harassed at airports. Airport gate agents had suggested to him that he was on a watchlist; those hints were confirmed in April 2008 when his employers at Colgan Airlines (a regional airline) told him that they had tried and failed to get his name removed from the watchlist, that he was being suspended without pay, and that he would be fired if he could not get his name removed promptly.
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Erich tried filing a complaint with the Department of Homeland Security (DHS), as part of the DHS TRIP program—the acronym stands for Traveler Redress Inquiry Program—designed to give innocent travelers a way to get off the watchlist. For four agonizing months he got no response. Desperate to keep his job, he consulted the ACLU and filed a lawsuit to try to get a court to help him. The agencies involved would not say whether or not Erich was actually on a list, even though his employer had already shared that information. The government repeatedly tried to get the case dismissed, but the court declined and scheduled a hearing. Shortly before the date of the hearing, Erich was surprised to learn that Colgan Airlines sent a letter to the Department of Homeland Security to confirm that Erich was being restored to his job. Even though the government had evidently relented, Erich continued to litigate because he believed he had been placed on the watchlist because of his religion. Erich is a Muslim. Having been exposed to Islam as part of his sensitivity training while serving in the Gulf, he studied comparative religion after he returned home and decided to convert—as had other Gulf War veterans. Shortly after that, he married Rubina Tareen, a Pakistani-born U.S. citizen, who is also a Muslim and who experienced airport problems even before Erich did. But not every Muslim-American ends up on the watchlist. Court records showed that in 2006, a co-worker had reported to the state police that Erich Scherfen was remodeling his car to carry bombs—a wild and false inference apparently based on the co-worker having seen Erich remove a broken seat from the car.
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In February 2010, the district court, having reviewed secret evidence submitted by the government and never shown to Erich’s lawyer, dismissed the case. The judge reasoned that Erich had his job back and so either he had not been on the list or was no longer on the list and so, in either event, he no longer had any standing to complain about how the list worked because he was no longer being injured.
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And so the court did not reach the issue of whether Erich’s rights had been violated—or the issue of whether it is constitutional to allow careless procedures and religious bias to put other people in the same situation.

One concern about secret designations, as Erich’s experience shows, is that they can be arbitrary or discriminatory. Secrecy can hide a multitude of abuses. Federal government policies aspirationally prohibit racial, religious, or ethnic profiling, but Erich Scherfen’s case shows that it need not be a government agent’s bias that causes Muslims to find themselves branded. Erich’s co-worker may have made mental leaps in interpreting a
perfectly innocent act because he knew Erich was a Muslim and in his own mind he equated Muslims and terrorists. The flawed watchlist nomination process, as the Inspector General found, can nurture and conceal all kinds of bias and sloppy fact-finding.

Another source of concern about watchlists is that behind closed doors suspicion can be based on First Amendment protected speech or associations, as well as religion. Jan Adams and Rebecca Gordon were early casualties of the No Fly list, stopped at the San Francisco airport on their way to Chicago in 2002 and told by agents that they were on “an FBI no-fly list.”
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They suspected that they were being targeted because of their antiwar activism—they were co-publishers of a newspaper called
War Times
, which was critical of the Bush Administration’s domestic war on terrorism. The newspaper’s slogan was “The first casualty of war is truth.” So they became plaintiffs in the Freedom of Information Act lawsuit mentioned above, hoping to learn why their names had been placed on the list. They never got an explanation, but the hundreds of pages of documents they received did not assuage their concerns. They were among the first to discover that the process for selecting names was dysfunctional. In addition, the FBI declined to say whether or not activities like attending antiwar protests could lead to inclusion on the list. And neither the FBI nor the TSA could say how many people had been stopped as a result of the lists, as the agencies did not think there was any need to keep track.

Fourth Amendment rights may be infringed if people are detained at airports without sufficient cause, as prolonged detention can amount to an unreasonable seizure. Having one’s name on a watchlist on the basis of insufficiently verified “fragments of information” is certainly not the equivalent of probable cause for arrest. People who want to get on an airplane, or keep their jobs, are under pressure to agree to an interrogation or polygraph test, compromising the Fifth Amendment’s privilege against self-incrimination. And it is certainly a denial of equal protection to single out people for special treatment because they are Muslims. But because the whole process is secret, we have no way of knowing how often improper or arguably unconstitutional designations occur. It is also typical of the War on Terror decade that Congress has provided little oversight and the courts have played almost no role in deciding whether any of this violates the Constitution. When experiences like Erich Scherfen’s come to light, most judges agree with the judge in Erich’s case that a person who doesn’t know for sure whether or not his name is on the list does not have standing to raise constitutional claims. Might the government try to avoid
all constitutional litigation, therefore, simply by stonewalling and refusing to confirm whether a person actually has been watchlisted,
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or by quietly removing that one squeaky wheel from the list?

Would-be litigants also encounter other difficulties, including government lawyers hiding behind secrecy and refusing to share relevant evidence with their lawyers, or even with the court, in order to keep the agencies’ actions from being reviewed or questioned, as Rahinah Ibrahim, a Malaysian doctoral candidate in architecture at Stanford University, discovered. When Rahinah arrived at the San Francisco airport with her fourteen-year-old daughter to fly home to Malaysia for vacation, she was handcuffed, searched, and driven to a police holding cell. An FBI agent eventually told the local police they could release her, as her name was being moved from the No Fly to the Selectee list and so she would be allowed to fly home after all, whenever she could book another flight. She was able to fly home to Malaysia the next day, but when it came time for her to return to school, she found that her visa had been revoked. When she complained to the government, she received a form response, telling her that her case had been reviewed and any required corrections had been made. Still not knowing why she had been targeted, in January 2006 she decided to bring a lawsuit against the federal and local officials involved. Years of technical legal wrangling over matters like jurisdiction and pleading standards followed. The government agencies involved vigorously resisted revealing to Rahinah’s lawyer or even to the judge what evidence had led to Rahinah being treated as a terrorism suspect. This government intransigence continued after Barack Obama became president and installed a new chain of command of lawyers in the Department of Justice.

The judge assigned to Rahinah’s case, William Alsup, was someone who took civil rights very seriously. A Clinton nominee, he had served as a law clerk for Supreme Court Justice William O. Douglas and had done civil rights work in the south. Judge Alsup eventually became exasperated with the government’s insistence on keeping all information about Rahinah’s treatment secret. At a hearing in December 2009, he told the government lawyers that it was evident to him that a “monumental mistake” had been made and that their arguments for refusing to show the court five-year-old information on the ground that national security could be compromised were “baloney.”
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Alsup ordered the government to turn over the documents showing why Rahinah had been targeted. He entitled his order, more circumspectly although still a shade sarcastically, “Order for Production of Items Despite the Assertion of Various Privileges.”
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But there are
limits to what an individual district court judge can do. The same judge had already dismissed some of the claims Rahinah had raised because they did not clear procedural hurdles set by the Supreme Court.
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The district court still has not decided, as I write, whether any of Rahinah’s rights were violated. Surviving dismissal for so many years, though, is enough to distinguish Rahinah’s case from most others—and to distinguish William Alsup from most other judges.

Watching the Watchlists

Back in 2004, the ACLU filed a lawsuit on behalf of frustrated passengers who had no way to prevent recurring airport problems even once they had been cleared for a particular flight. The plaintiffs included John Shaw, a retired Presbyterian minister from Washington State; Michelle Green, a U.S. Air Force Master Sergeant stationed in Alaska; and Alexandra Hay, a Middlebury, Vermont college, student; all of whom were hassled at airports because they had name twins.
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The lawsuit asked the agencies to develop some real program for enabling innocent people to find a way out. That December, after the lawsuit was filed, after the Senate Judiciary Committee hearings starring Senator Kennedy, after expressions of public concern, and after a 9/11 Commission recommendation,
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Congress finally took action, directing the TSA to maintain its lists in a manner that “will not produce a large number of false positives” and to create an appeal system for persons wrongly placed on the lists—exactly what the lawsuit had asked.
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In light of this promising legislation, the lawsuit was discontinued. But for years, the systems created in response to Congress’s command remained ineffective. A December 2009 Congressional Research Service report described misidentification as a recurring issue that should be of concern to Congress.
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The Department of Homeland Security developed DHS TRIP, which invites someone who has experienced problems at the airport to file a form online and get a “Redress Control Number,” as Erich Scherfen did. Travelers still are not told whether or not they actually are or were on the list, why they were placed on the list if they were on it, or whether they have been removed from the list as a result of their complaint. They are given no opportunity to confront or challenge unfounded accusations like the one made by Erich Scherfen’s co-worker. Any review, like the original designation, will take place behind closed agency doors. The response letter they get following the review will be comically cryptic.
The letter Erich Scherfen received after his four-month wait, for example, said:

In response to your inquiry concerning travel delays at the airline ticket counter or airport security checkpoint, we conducted a review of any applicable records in consultation with other Federal agencies, as appropriate. Where it was determined that a correction to records was warranted, these records were modified to address any delay or denial of boarding that you may have experienced as a result of the Transportation Security Administration’s watch list screening process.
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