Unprecedented Release of Government Documents Reveal Confusion and Absence of Policy in Implementing No-Fly Lists, ACLU Says
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ACLU of Northern California freedom of information lawsuit DOCUMENTS
Filing of the case against the FBI, Department of Justice and Transportation Security Adminitration
October 8, 2004
SAN FRANCISCO -- In response to a federal court order, the Department of Justice today released to the American Civil Liberties Union of Northern California some 300 pages of documents that indicate that the government's controversial "No Fly" watch lists were implemented and enforced long before there was a coordinated policy in place. The documents reflect, among other things, confusion, inter-agency squabbling and subjective criteria in placing names on the lists, as well as -- for the first time -- figures on how many people were added to the list in the months after the 9/11 attacks.
"The government documents released today raise serious concerns about how the lists were prepared, whether they are accurate, and whether appropriate care was given for our clients who filed this lawsuit based on their concerns about whether or not they were put on this list because of their First Amendment activities," said ACLU of Northern California cooperating attorney Thomas R. Burke of Davis Wright Tremaine LLP in San Francisco.
According to one document, as recently as February 4, 2003, a Transportation and Security Administration (TSA) memo states that the TSA was setting up a "watch list work group" to "finalize the watch list policy." Another TSA memo dated October 16, 2002 noted this problem: "After almost one year of administering the growing no-fly and selectee lists, the publication of a policy that articulates the criteria and requirements for adding and removing individuals from the no-fly and selectee list is critical. TSA continues to receive these requests on a daily basis."
The documents also reflect significant confusion within the government because of a multiplicity of lists and the subjectivity of the watch list criteria. In one TSA memo it was noted that the passenger screening program involved "things passengers might do which also might be things a terrorist would do, e.g., pray to Allah right before the flight that you might have 90 virgins in heaven."
Documents from the FBI record confusion about the process and respective agency roles. For example, in one memo an agent noted he deals "on a daily basis with confusion in the field regarding the differences between the FBI terrorism watch list and TSA's no-fly and selectee list."
In another FBI memo, an agent complains: "Despite my best efforts, the TSA just motors along and I and the agents are being whipped around the flagpole trying to do the right thing."
In another memo dated June 3, 2002, an agent asks, "My question is, who creates these lists and what are our responsibilities in regards to it? Also, I am not the sharpest tool in the shed, so could you explain the difference in the selectee and no fly lists to me? And what specifically do we do if we have a selectee list hit? These may be stupid questions, but you know what they say!"
The ACLU noted that in one internal FBI memo that appears to be an outline regarding watch lists and privacy issues, categories specifically noted included: Libraries/bookstores, colleges and First Amendment Activities. It is unclear from the memo whether these are categories for determining whose name would be placed on a no-fly list.
For the first time, the ACLU has also learned how many people were added to the no-fly list during the 15 months after September 11, 2001. The documents show that on September 11, 2001, only 16 individuals were listed on the no-fly list; on September 12, there were more than 400, and by December 2001 there were 594 names. As of December 2002, there were thousands of names on the lists.
Today's documents were released in connection with a Freedom of Information Act and Privacy Act request filed by the ACLU of Northern California on behalf of two Bay Area anti-war activists, Rebecca Gordon and Jan Adams, who were told by airline agents at San Francisco International Airport that their names appeared on a FBI no-fly list. When the government failed to respond, the ACLU filed a lawsuit in April 2003 and obtained 94 pages of documents that failed to answer basic questions about the no-fly list, including how names are selected for the list and whether individuals are being singled out for First Amendment-protected activity.
On June 15, 2004, U.S. District Judge Charles Breyer, in a sharply worded opinion, ordered the FBI and other government agencies to explain why they couldn't disclose more information about the watch lists. The case is Gordon v. FBI.
In April of this year, the national ACLU filed a nationwide class-action challenge to the no-fly list. As the ACLU noted in legal papers, many innocent travelers who pose no safety risk whatsoever are discovering that their government considers them terrorists -- and find that they have no way to find out why they are on the list, and no way to clear their names.