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Expansion of no-fly list raises concern over civil liberties

Wednesday, August 11, 2004

SAN FRANCISCO -- The Sept. 11 Commission wants the government to expand the no-fly list airlines now check to keep suspected terrorists off planes, consolidating as many as 12 secret lists maintained by different intelligence agencies.

That worries the American Civil Liberties Union, which has already sued the government, saying the airlines' effort to keep terror suspects and other dangerous people off planes ensnares innocent passengers and subjects them to unnecessary searches and delays. Also, the government provides no way for those wrongly named to get themselves removed.

"Right now, if you're on the list, you're in a no-fly jail. There is now no way out of this," said Barry Steinhardt, the director of the ACLU's Technology and Liberty Project.

Commissioners agree the government has a "definite interest" in ensuring the protection of passengers' civil liberties as well as their safety. Their report, however, didn't spell out how the government should improve its checks and balances for the watch lists.

Getting off the list

In lawsuits filed in San Francisco and Seattle, the ACLU has demanded the government explain how wrongly flagged travelers -- usually targeted because they have names similar to those on the list -- can get off it. The ACLU also wants to know how many people are on the list.

"They have to make the best efforts to make sure it's accurate and has to have a procedure to make sure people mistakenly identified can get off the list," Steinhardt said.

U.S. District Judge Charles Breyer, who privately reviewed the government's "sensitive" data, ordered the government in June to further explain why it hasn't disclosed certain documents in response to the ACLU's Freedom of Information Act request.

Breyer said the government has refused to say why the number of people on the list should not be disclosed. He also wonders why the government classified its procedure for adding names to the list as "non-disclosable sensitive security information."

"In many instances, the government has not come close to meeting its burden, and, in some cases, has made frivolous claims of exemption," Breyer wrote.

Authorities have repeatedly refused comment on Breyer's ruling or questions about the no-fly list.

The Federal Bureau of Investigation, the Transportation Security Administration and other agencies cite security concerns for not publicly disclosing to the ACLU why two of the group's clients -- peace activists who publish a magazine critical of the Bush administration -- were detained at San Francisco International Airport. The two believe they were wrongly detained because their names popped up in the database.

The agencies even blacked out names of government officials in charge of the list, including the FBI employee responsible for responding to inquiries from the public regarding names appearing on the list.

President Bush last year authorized the FBI to establish the consolidated database the commission recommends be used at airports. Homeland Security Director Tom Ridge, when announcing the creation of the still unfinished mega-database last year, said "the job of the new Terrorist Screening Center is to make sure we get this information out to our agents on the borders and all those who can put it to use on the front lines."

The Sept. 11 Commission urged that the government take over pre-screening responsibilities from the airlines even before a new system is developed.

The list the airlines use includes only the people the government believes "pose a direct threat to aviation." Many names of potential terrorists, now kept in a slew of government databases, have been held back from the airlines because some agencies consider the information too sensitive to share.

That problem can be solved, the commission said, if the lists are consolidated and the TSA takes charge of preflight passenger screening.

"Because air carriers implement the program, concerns about sharing intelligence information with private firms and foreign countries keep the U.S. government from listing all terrorist and terrorist suspects who should be included," the report said.

The airline industry has welcomed that recommendation, which is expected to be the subject of congressional debate this month. House leaders say they want legislation to implement the commission's proposals in September, and Senate leaders by October.

"We are all for the government being in charge of that, of the government assuming that responsibility," said Diana Cronan, a spokeswoman for the Air Transport Association of America, which represents 22 airlines, including all major U.S. carriers. "They have all the information. They're trained and they have the intelligence."

The commission noted its airline screening proposal, as well as other ideas that would increase the government's power over the public, could tread on civil liberties. That's why it recommends the creation of an executive branch board committed "to defend our civil liberties" at a "time of increased and consolidated government authority."

"How that may be fashioned is probably best left to the Congress and president," said commission spokesman Jonathan Stull.


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