How No-Fly Lists Are Used to Punish Political Protesters
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It was August 2002. My partner Jan Adams and I were just beginning our annual pilgrimage to Massachusetts to visit my father and stepmother. At the check-in line at San Francisco International Airport, we handed over our driver’s licenses and waited for the airline ticket agent to find our flight and reservation. Suddenly, she got a funny look on her face. “There’s something wrong with the computer,” she said. “I need to talk to my supervisor.”
So began a day of confusion and fear, followed by several years of indignation, frustration, and litigation, as we struggled to find out why -- as the agent’s supervisor soon informed us with a similarly strange look on her face -- we’d both “turned up on the FBI’s no-fly list.” Her eyes grew wide as she looked us over. “I don’t understand it,” she said. “You don’t fit the profile.”
She was right, of course. A pair of middle-aged, middle-class, white lesbians did not fit the profile of the “Arab terrorists” she expected the no-fly list to contain. What she didn’t know was that our suitcases held hundreds of copies of War Times/Tiempo de guerras, a free, bilingual antiwar tabloid we’d helped start. Could aging pacifists have fit the danger-to-America profile?
You might think that the no-fly list is old news, a relic of the panicked early days following the 9/11 attacks. In fact, as recently as 2012, there were still more than 21,000 names on the list, and it seems unlikely to have gotten any shorter since then, though we do know of at least four names that, with some legal prodding from the Center for Constitutional Rights (CCR), were recently removed from it: Muhammad Tanvir, Jameel Algibhah, Naveed Shinwari, and Awais Sajjad. All four men were American citizens or permanent residents who ended up on the list as retaliation for refusing to become FBI informers and tell tales on their neighbors and others in Muslim communities in this country. For years, they could not visit wives, children, or ailing relatives in countries like Pakistan and Yemen.
According to a suit filed by the CCR in 2014, as reported by Conor Friedersdorf in the Atlantic, Jameel Algibhah’s troubles began in 2009, when he refused the FBI’s request to infiltrate a mosque in Queens, New York. The legal complaint continues:
“When Mr. Algibhah declined to do so, the agents then asked Mr. Algibhah to participate in certain online Islamic forums and ‘act like an extremist.’ When Mr. Algibhah again declined, the agents asked Mr. Algibhah to inform on his community in his neighborhood. The FBI agents offered Mr. Algibhah money and told him that they could bring his family from Yemen to the United States very quickly if he became an informant. Mr. Algibhah again told the FBI agents that he would not become an informant.”
So the FBI retaliated. Since 2010, Jameel Algibhah has been unable to visit his wife and three daughters in Yemen. Not content with preventing Algibhah and the other three from flying, the FBI began interviewing their friends, family, acquaintances, and employers, generating suspicion about them. “They lost jobs, were stigmatized within their communities, and suffered severe financial and emotional distress,” reports the CCR.
In June 2015, just before their case was to go to court, the men received letters from the government officially informing them that their names had been removed from the list. The CCR believes that "the letters are a de facto acknowledgment that the men never posed a security threat of any kind and that the FBI only listed them to coerce them into spying on their faith community."
The letters restored the men’s right to fly, but they didn’t make up for years of stigma and distress. So the four continued their litigation, but on September 3rd, a federal judge dismissed their suit, which means that they will not get any recompense for the damage done to their lives. In June 2015, the Associated Press reported that Assistant U.S. Attorney Ellen Blain argued the case should not continue, in part for reasons of “national security” and because “neither the law nor the evidence supported finding the agents personally liable for violating the plaintiffs' constitutional rights.” In fact, the government’s original motion to dismiss the suit argued that “there is no constitutional right not to become an informant.” That’s right. Your government says that if it wants to make you a snitch, you have no right to refuse.
Given that these four men without criminal records or any other obvious reason for government suspicion were, like my partner and me, put on the no-fly list leads me to wonder about the other 21,000 people on that list, including at least 500 Americans. (In fact the overall number could turn out to be as high as 44,000, according to “60 Minutes,” or even 48,000, according to the Associated Press. We just don’t know because, like so much else in our new post-9/11 world, information about the list remains classified.)
What did all those other people on the list do or refuse to do? How have their lives been damaged? And how dangerous are they really? My partner and I certainly had no intention of turning our airplane into a terrorist weapon. What are the odds that any of the other 21,000 or 44,000 or 48,000 people did? And if potential airplane bombers or hijackers do exist, what are the odds that any of them are actually on the FBI’s list? After all, Umar Farouk Abdulmutallab, the “underwear bomber,” wasn’t. Neither was the infamous “shoe bomber” Richard Reid. All this list-making has been marked by an odd -- and dangerous -- combination of intrusion and incompetence.
The National Insecurity State
In our case, even though we didn’t fit “the profile,” the agent, a little shakily, followed her protocol. She called the San Francisco Police, who have an airport substation. Three armed members of the city’s finest arrived a few minutes later to stand guard over us and our luggage in the middle of the lobby, while they waited to hear from headquarters about whether we were on what they called the “master list.” No one ever told us what this “master list” was, or how it was different from the list the airline’s computer was consulting. As I pondered the master list, and our chances of appearing on it, my mind kept wandering to those copies of War Times sitting a yard away from the officers’ feet. Suppose they asked to open our luggage? How would they react when they saw those papers?
To be honest, both of us figured that two white U.S. citizens with plenty of class privilege were not going to suffer anything much worse than a missed flight, and it turned out that we didn’t even miss our flight. After about 20 minutes, however, I was getting antsy -- and thirsty.
“Would one of you officers walk over there with me, so I can get a drink?” I asked, pointing to a water fountain across the way.
“No. We’re going to stay right here until we hear from headquarters,” came the reply.
The initial sense of fear was slowly draining away as the minutes ticked by and passengers boarded the flight we now feared they were never going to let us get on. I knew it was time to draw on my dramatic chops. (Sometimes it helps to have an actor for a father.) Putting on my best Frightened Little Woman voice, I asked, “Suppose we are on this master list? Then what? Are you going to arrest us?”
“We wouldn’t arrest you, but we’ll have to detain you until the FBI gets here and decides what they want to do with you,” came the answer.
We were probably all relieved when, a few minutes later, the lead officer’s walkie-talkie crackled to life with news from headquarters. We weren’t, it seemed, on the “master list.” So the officers marked our boarding passes with a big red “S” -- which we learned years later stands for “selectee” -- put our luggage through a special X-ray machine (but never opened it), and escorted us past security to our gate, with the airline agent in tow. There, they saw us onto our flight.
I turned to the agent. “Is this going to happen every time we fly?”
“I don’t know,” she replied, “but if I were you, I’d get to the airport early.”
To our surprise, more police met us at our stopover in Chicago, where we changed planes, perhaps in case we decided to blow up the airport. They then escorted us to the next gate, waiting with us until we boarded.
Once in Boston, we continued our journey unhassled by bus and boat to Martha’s Vineyard. However, on either that trip or a later one -- my memory fails me -- our ferry to the island was escorted out of Woods Hole harbor by two 50-foot Coast Guard Zodiac boats, each sporting a 50mm machine gun on the bow -- as if we might be attacked in the coastal waters of Massachusetts, and by an enemy capable of being defeated by a machine gun. Once we got to deep water, where such an attack would be more likely, however, our escorts turned around and left us defenseless. I promptly burst out laughing.
“Well, I don’t know about you,” growled a well-dressed guy standing beside me on the deck, “but it makes me feel more secure.”
A lot of unlikely things made many Americans feel more secure in those days and still do. Maybe it was because we were then -- and remain today -- frightened in a way that bears no relation to any actual threat we face. That fear, however, feeds the desire of the national security state to maintain its centrality in our lives. Among the curious things that added to our sense of “security” in those years: the rounding up of 600 Muslims living in this country in the days following 9/11, who were then tortured and held incommunicado in a Brooklyn detention center for six months; the suggestion from a liberal columnist in Newsweek that it was “time to think about torture”; or to mention just a couple of no-fly follies -- putting Senator Teddy Kennedy on the list, along with at least one nun, and until 2008, Nelson Mandela. (That was also the year he was finally taken off the U.S. terrorism watch list.) Oh yes, and don’t forget a couple of no-name peace activists.
As it happens, at the time we had our experience at San Francisco airport, my stepmother’s brother was a reporter for the San Francisco Chronicle, the guy the Chron had assigned to the Unabomber story some years before. When he got her email about our run-in with the national security state, he was on the phone to her immediately. Did she think we would be willing to talk to a reporter? Oh, yes, my stepmom assured him, we definitely would. And thus began perhaps the longest-running “story” I’ve ever been part of. Three years later, we were still getting requests from German and Dutch television stations to reenact the event at the airport. While we in this country settled into the new normal, it turned out that Europeans remained shocked by U.S. government doings.
As it happened -- the FBI really had done a lousy job of vetting us -- my partner was then consulting for the Northern California ACLU. When she told them about our experience, they wondered: Would we be willing to let them file a Freedom of Information Act request on our behalf to try to figure out how this had happened? We agreed in hopes that the documentation we got our hands on would help us understand how we’d gotten on the no-fly list in the first place and -- far more important to us at that moment -- whether or not we’d been removed. We also shared the ACLU’s more general concern that this list was fast becoming a tool of government fear mongering and coercion. That concern turned out to be well founded.
But we were, of course, living in the post-9/11 United States, in an era in which the government seems to have given up pretending that it has to obey the law when it comes to anything that falls under the category of “national security.” So we didn’t even get a reply to our FOIA request (although in theory the government was obligated to respond to it) -- at least not until the ACLU sued. By this time I’m sure you won’t be shocked to discover that the pro bono attorney working on the case for them also found himself on the no-fly list.
Eventually, the ACLU’s suit did bring us about 300 pages of paper from the feds. But most of what was written on those 300 pages had been redacted -- completely blacked out. U.S. District Judge Charles Breyer (brother of Supreme Court Justice Stephen Breyer) was not amused. He made the feds show him privately every document they wouldn’t allow us to see and required them to explain the rationale for each redaction. But we never saw the unredacted material ourselves. Who knows what those 300 pages contained, and how much of it was about us personally? Judge Breyer did at least award the ACLU $200,000 in court costs for their efforts. But we never found out why we were on the list in the first place. That was a secret he allowed the feds to keep, presumably to prevent prospective terrorists from figuring out how to avoid getting listed. Here’s a hint: don’t publish an antiwar newspaper.
The only time we’ve had trouble flying since then was when my partner took the same airline to Chicago for a United for Peace and Justice conference. Apparently, some people are only dangerous on some airlines.
Winners and Losers
When I told our no-fly story to an ethics class of mine recently, one of my students asked, “So who won, you or the government?” I had to stop and think about that. After all, while the ACLU got their expenses back, which was a moral win, but we never found out why we were on the list, or even whether we’d been removed.
Then I remembered something else: just how afraid I was that day simply because we were carrying multiple copies of a perfectly legal antiwar paper in a perfectly legal manner. I remembered as well how frightened I later became after one of the pages that the ACLU shook loose from the government suggested that our names might have been sent as potential terrorists to U.S. embassies and agencies all over the world. (This may have been as part of another example of what seems to be endless post-9/11 government list gathering: the State Department’s Consular Lookout and Support System, known as “CLASS.”)
And I thought about those four Muslim Americans on the no-fly list because they refused to become FBI informants, and about Rahinah Ibrahim, a Malaysian student studying at Stanford University who ended up on the list because an FBI agent checked the wrong box on a form. Nine years later, she finally won her suit to get off the list, only to find that the U.S. embassy in Malaysia had revoked her student visa -- because she’d ended up on the CLASS list, as a result of the same original error. I thought about all the nuns, babies, and people with the misfortune to be named Mohammed who ended up on the list in error. And I was struck by the fact that, for 14 years, the national security state has been serving up a uniquely pernicious stew of incompetence and intransigence.
Finally, I thought about the times I’ve quietly chosen not to carry a particular book, or wear a particular T-shirt or button, when travelling by air. No reason to give the Transportation Security Administration any more excuses to pay me special attention. It’s easier, safer, just to conform. So did my partner and I win our suit? When so many of us become frightened enough of our own government to do its censoring for it, I’d say that we’ve all lost.