Well after 9/11, 'no fly' lists a work in progress

Tom Burke recently tried to print out a boarding pass from home before one of the frequent flights he takes.

He couldn't. When the San Francisco lawyer got to the airport, he was told the reason: His name, or one similar to it, is now on one of the Transportation Security Administration's terrorist watch lists.

"There was a certain irony to it," says Mr. Burke, a First Amendment expert who is suing the federal government on behalf of others who have found themselves on either the TSA's "no fly" or "selectee" list.

Almost 3-1/2 years after the Sept. 11 terrorist attacks and a year and a half after Congress ordered law-enforcement agencies to consolidate and coordinate its terrorist screening processes, the status of the watch lists remains uncertain and is a cause of frustration for thousands of travelers as well as the nation's airlines.

Every day, thousands of people like Burke find themselves unable to do things like print a boarding pass and are pulled aside for extensive screening because their name, or a name that sounds like theirs, is on one of the watch lists. Even well-known lawmakers, like Edward Kennedy (D) of Massachusetts, have found themselves caught in the screening dragnet.

From the TSA's perspective, the screening is just one of the many new layers of increased security that are designed to thwart terrorist activity. The inconvenience is regrettable, but a price that society has to pay for security. And for national security reasons, the FBI and other government agencies responsible for supplying names to the lists will not divulge the criteria they use. They say that would amount to tipping their hands to the terrorists.

"People on the lists are known threats to civil aviation or suspected threats," says Amy Von Walter, a TSA spokeswoman. "There is no tie to political affiliation, race, creed, etc."

The TSA does acknowledge some problems with the current system. For instance, if your name is the same, or even sounds the same as someone on the list, you will be pulled over for additional screening. So the TSA has set up an ombudsman process for people who feel they are on the list unfairly. (The number to call is 866-289-9673, or the e-mail address is tsa-contactcenter@dhs.gov.) The TSA is also working on a new screening process called "Secure Flight." The TSA hopes that eventually it will lessen the confusion between the Tom Burkes who may be suspected terrorists and those who are upstanding local citizens.

But civil libertarians and First Amendment activists are more concerned about the long-term ramifications of the current lists and how they're used. On the morning of Sept. 11, 2001, the no-fly list contained 16 names, according to documents obtained by Burke and the American Civil Liberties Union. Now, the combined lists are estimated to have as many as 20,000, although the actual number is classified. But documents make it clear that in the first jittery months after Sept. 11, FBI agents and others responsible for the lists did not have clear criteria to determine who got on and who didn't. Internal FBI memos from agents referred to the process as "really confused" and "not comprehensive and not centralized."

Burke and others contend that such comments are disturbing, because it was during the first year after the attacks that the watch lists grew exponentially.

"The underlying danger is not that Tom Burke can no longer get a boarding pass to get on an airline," says the First Amendment lawyer. "It's that the Tom Burkes in the world may forever more be associated [with the terrorist watch list]."

Burke says they do know that the lists are frequently updated and distributed internationally, but they don't know how they're controlled or disseminated, or how the old lists are destroyed. That's what they're hoping to learn from the lawsuit. They also hope to ensure that sometime in the future a person whose name is on the list, but is not a terrorist, does not run into further trouble if, say, law enforcement in another country that they're visiting comes across their name on one of the old lists.

In addition, airlines are concerned that the lists are not vetted frequently enough. A source with ties to the airlines security apparatus says there have been a number of cases where flights were already going across the Atlantic when they discovered someone on the no-fly list was on board. But when law enforcement agencies were contacted, it turned out not to be an issue, because the FBI said the person shouldn't have been on the list in the first place.

"We've been encouraging the TSA to work with all of the other federal law-enforcement agencies to get a regular review of the names that they submit to TSA, because there have been reports that these agencies have said that if there was a review, many of the names could be removed," says Diana Cronin of the Air Transport Association, the lobbying arm of the major airlines.