Feb 08 2022

Not another no-fly list

In a letter first reported by Reuters and first published in full by The Points Guy, CEO Edward Bastian of Delta Air Lines has called on Attorney General Merrick Garland to “support our efforts with respect to… putting any person convicted of an on-board disruption on a national, comprehensive,… ‘no-fly’ list that  would bar that person from traveling on any commercial air carrier.”

The latest letter from Delta steps up a lobbying campaign the airline began last fall, and which remains as misguided as ever. The letter highlights the urgent need for Congress to enact the Freedom to Travel Act (H.R. 6030) to make clear the rights of travelers, the duties of airlines and other common carriers, and the limitations on when, by what authority, on what grounds, and according to what procedures the right to travel can be restricted.

As Jay Stanley of the ACLU has noted, Delta has not said according to what criteria or procedures it thinks that individuals should be barred by Federal authorities from travel by air. But on its face, the letter seems to suggest that any conviction for “an on-board disruption” should result in an automatic (and irrevocable?) prohibition on air travel of unspecified (lifetime?) duration.

Restrictions on the geographic limits of travel can be, and routinely are, among the conditions of release imposed on those who have  been charged with crimes and are awaiting trial. But those conditions can be imposed only on the basis of an individualized judicial determination, following adversary court proceedings, that they are necessary to ensure that the defendant will appear for trial. There’s a difference between prohibiting a defendant from leaving the district, state, or country while awaiting trial, and restricting  the means by which they can travel. It’s difficult to see how prohibiting air travel, while allowing travel e.g. by private car, would have any rational relationship to assuring that the defendant would appear for trial.

The reference in the letter from Delta to “conviction”, a term applicable only to criminal offenses, suggests that Delta proposes that an air travel ban be imposed as a sanction for certain crimes.  But a ban on air travel is not specified as a possible penalty, much less a mandatory one, for violation of any statute we can find. Only Congress, not the Attorney General, could enact a law adding such a sanction to the U.S. Code — even if such a law  could withstand the inevitable Constitutional challenges, which we doubt it would.

Judges can impose special conditions of probation or parole as part of their sentences on those convicted of crimes. But in the absence of a statutorily mandatory sentence, those conditions must be individually justified, and cannot be automatic. Special conditions of probation or parole that restrict the exercise of fundamental rights, such as the right to travel, are especially suspect and require an especially strong, particularized justification.

It’s important to keep in kind just how draconian the consequences of an air travel ban might be. There are no regular passenger ferries or ocean liners between the mainland U.S., Hawaii, Puerto Rico, the U.S. Virgin Islands, Guam, or American Samoa. An air travel ban could amount to exile from the mainland and confinement, perhaps for life, to any of those islands — or to lifetime banishment from, and inability to return to, one’s native island. U.S. citizens placed on no-fly blacklists while abroad have been prevented from returning home, even when that meant they ended up in foreign prisons for involuntarily overstaying their visas.

Delta’s proposal appears to be limited to people convicted of certain crimes. But it has been taken up, disturbingly, by others who seem to want an even larger travel blacklist imposed by corporate or administrative agency fiat, rather than by court order.

In response to questions about the Delta Air Lines proposal, Secretary of Transportation Pete Buttigieg told CNN, “I think we need to take a look at it. Look, the airlines are often doing their own internal no-fly list. Some of them have spoken about maybe coordinating on that, and we’re looking at these policy recommendations as well.” The duty of the Department of Transportation, however, is to enforce the Federal laws and international aviation and human rights treaties that recognize the right to travel by common carrier.

The DOT should not support, encourage, or tolerate vigilante actions by airlines. Airlines can, and should, report suspected crimes to the police — and then let the police deal with them. Airlines are not police and have no judicial authority or competence whatsoever.

In an editorial today, the Washington Post claims that, “The federal government is empowered to ban from the airways people who are known threats to safety. It already does so in the case of suspected terrorists.” The problem is that, while the Federal government does have that power, it has never chosen to use it. Instead, it has acted in flagrant disregard for the Constitution and the rule of law.

The branch of the Federal government with the power to ban people from the airways is the Federal judiciary. The Department of Justice (DOJ) could petition Federal courts to issue no-fly injunctions, and Federal judges could issue them,  subject to well-established substantive and procedural criteria for restraining orders and injunctions.

The proper role of agencies charged with “maintaining” no-fly lists is to keep accurate records of who has been lawfully barred from airline travel by valid court orders.

So far as we can tell, though, the DOJ has never once asked a court for a no-fly order or made any attempt to use any of the existing structure of laws and legal procedures.

Instead, a rat’s nest of agencies including the DOJ, the Department of Homeland Security, and other agencies collaborating in an inter-agency Watchlisting Advisory Council have conspired to violate the rights of U.S. citizens, residents, and visitors alike by blacklisting people without bothering to get courts to even rubber-stamp no-fly orders.

We need to withdraw from this quagmire of injustice, not march further into the mud. For that to happen, Congress needs to make the law clear to Federal courts, Federal agencies, airlines, and other common carriers by passing the Freedom to Travel Act.

10 thoughts on “Not another no-fly list

  1. Pingback: Links 9/2/2022: GNU Binutils 2.38 and Google Stadia Failing | Techrights

  2. Pingback: “Freedom to Travel Act of 2021” introduced in Congress – Papers, Please!

  3. Letter from eight U.S. Senators to Attorney General Merrick Garland:

    “The TSA’s existing ‘no-fly’ list for suspected terrorists is already controversial due its lack of transparency and its due process concerns. However, the TSA has rightly chosen not to create a consolidated ‘no-fly’ list for passengers convicted of non-terrorist, on-board disruptions. The creation of this list by DOJ would result in a severe restriction on the ability of citizens to fully exercise their constitutional right to engage in interstate transportation. It also raises serious concerns about future unrelated uses and potential expansions of the list based on political pressures. If the airlines seek to have such a list created, they would be best served presenting that request before Congress rather than relying on a loose interpretation of a decades-old statute originally written to combat terrorism. Absent any updated expressed directive from Congress, we strongly urge DOJ to reject this request.”

  4. I suppose the argument they’d make is that if Facebook has the right to ban users it doesn’t like from its (privately owned) system, then so does an airline. But Facebook and Twitter don’t share lists of abusers, as the letter proposes airlines should.


  5. The difference is that airlines are common carriers, and Facebook is not. Common carriers are licensed and granted special privileges on condition that they agree to transport all qualified would-be passengers, in accordance with a published tariff applied equally to all.

  6. Pingback: Airlines want even more people put on the no-fly list – Papers, Please!

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