Unprecedented Release of Government Documents Reveal Confusion and Absence of Policy in Implementing No Fly List

Senator Ted Kennedy, Yusuf Islam (formerly known as Cat Stevens), and Alaska Republican Congressman Don Young, were among those on No-Fly list
For Immediate Release: October 12, 2004

SAN FRANCISCO – In response to a federal court order, the Department of Justice released to the ACLU of Northern California some 300 pages of documents that indicate that the no-fly government watch list was implemented and enforced long before there was a coordinated policy in place. The documents reflect, among other things, confusion, inter-agency squabbling and the admission that the criteria in placing names on the list are “necessarily subjective” and “not hard and fast rules.”

“The government documents released raise serious concerns about how the list was prepared, whether it is 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-NC cooperating attorney Thomas R. Burke, of Davis Wright Tremaine LLP in San Francisco.

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.” Five months earlier, a 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. In one FBI memo dated October 1, 2002, an agent complained that these “lists are not comprehensive and not centralized. Some subjects appear on one list but not the others. Some of the lists are old and not current. We are really confused.”

Another FBI agent had this reaction to an apparent TSA official’s rationale for the lists:
“Unfortunately, eggheaded thinking like this muddies the waters to the point where the no-fly and selectee lists become virtually worthless (garbage in, garbage out.)”

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 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!”

Also, in one internal FBI memo, that appears to be an outline regarding watch lists and privacy issues, categories specifically noted include: Dissemination of Watch Lists/No Fly Lists, Libraries/Book Stores, Colleges and First Amendment Activities. It is unclear from the memo what is the connection between these categories.

For the first time, the documents also reveal how many people were on the no fly list. The documents show that on September 11, 2001, only 16 individuals were identified as being banned from air travel, the following day, more than 400 were listed, and by December 2001 there were 594 names. As of December 2002, there were 1000 names on the list.
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The ACLU-NC filed a lawsuit in April 2003 under the Freedom of Information Act and Privacy Act (FOIA) on behalf of itself and 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. The case is Gordon v. FBI.

The government’s first response consisted of 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.

In a sharply worded opinion dated June 15, 2004, U.S. District Judge Charles Breyer criticized the government for its “frivolous claims of exemption” and ordered a further production.

The FBI and the TSA released the documents on October 7, 2004.