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A better no-fly list

By Justin Florence
Monday, January 4, 2010; A13

In the wake of embarrassing stories a few years ago about members of Congress and babies appearing on the "no-fly" list, the government reduced the number of names drawing extra scrutiny at airports. Federal officials are right to worry about the civil-liberties ramifications of the no-fly list, but the facts surrounding the attempted attack on Northwest Airlines Flight 253 underscore that the wrong approach has been taken. Rather than simply reducing the number of names on the no-fly list or raising the bar for a name to be listed, the government should make it easier for wrongly listed travelers to clear their names.

One of the lessons of Sept. 11, 2001, reaffirmed last month, is that it is difficult to keep dangerous items off planes. Watch lists will never replace metal detectors, but they may stop some people who would destroy planes with box cutters or liquid explosives. The no-fly list itself targets potentially dangerous people without the use of racial or religious profiling, and improving it does not require expensive scanning equipment or the hiring of additional screeners.

The problem with the no-fly list is not its size but that some individuals appear on it because they share the name of a dangerous person or as a result of bureaucratic accident or thinly sourced and inaccurate intelligence tips. Rather than require the government to be nearly certain that an individual is an actual security threat before initially listing him or her -- and running the risk that the truly dangerous will be left unlisted -- it would make more sense to facilitate the removal of wrongly listed people.

To begin, travelers should have a way to determine in advance of a flight whether their names are on the list. That way they won't be surprised when they show up at the airport and are forced to miss a flight. Of course we don't want to have a Web site where people can check their names; that would make it too easy for terrorists to check false identities against the list until they find one that works. A better approach would be to create a system where people can check -- in person -- whether they are on the list. Locations for such checks could be airport security offices, U.S. embassies or other federal buildings. Truly dangerous people are unlikely to identify themselves to security officials to ask whether they are on the list; if they do, they can be questioned or arrested. But people who should not be on the list would have the chance to clear their names before enduring delays or missing flights.

For individuals listed by accident or because they share a dangerous person's name, the Transportation Security Administration's ombudsman system could simply update the federal watch list (with more specific identifying data such as date of birth, if necessary). The bigger challenge is people who may well be dangerous but for whom the intelligence community has only a single, classified red flag, perhaps a warning from a concerned parent or intelligence asset. The question becomes whether that tip is an indication of real danger or the result of undue suspicion.

To resolve these difficult cases, listed individuals should be given the right to request an administrative hearing. If the government is concerned that sharing secret evidence might reveal intelligence sources and methods, it should provide these individuals with an attorney who has security clearance. These lawyers can review the evidence, clear up confusion and present the individual's best case. (Providing representation would help compensate people for the inconvenience of an erroneous listing.) It is hard to imagine that actual terrorists would request such a hearing to attempt to remove their names from the list. If they did, the government would be able to learn more about them and would be in a position to arrest them when appropriate. But it should not be difficult for innocent people to clear their names with the help of an attorney who has access to secret evidence.

Because Umar Farouk Abdulmutallab was listed in a government database but was not on the no-fly list, some have suggested making the revocation of travel privileges more automatic. We should know more soon about where our system broke down and why the warnings from Abdulmutallab's father did not result in greater scrutiny. But whether or not the government expands the no-fly list, federal officials should incorporate ways for wrongly listed travelers to clear their names. This would help the no-fly list keep dangerous people out of our aviation system with minimal inconvenience to the rest of us.

The writer is an attorney at a Washington law firm and a fellow at the Georgetown Center on National Security and the Law. He has previously published in the Yale Law Journal on the constitutionality of the no-fly list.

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