Undeterred by the manifest unfairness of the US government’s current no-fly list, some airlines and their allies are apparently renewing a campaign they began last year to get Congress to create yet another extrajudicial procedure by which the Transportation Security Administration (TSA) could put even more people on the US no-fly list.
Seriously? Can anyone really think that the way to make the current bloated and bigoted no-fly list more fair is to add even more names to it? That what the TSA needs is more authority to impose arbitrary and judicially unreviewable sanctions on disfavored members of the traveling public? That the branch of the government best qualified to exercise the power to make decisions that restrict people’s rights and in some cases would cost them their livelihood, perhaps for life, is the TSA?
Once a no-fly list exists, it’s almost inevitable that some people will see it as a one-stop solution to every problem, and will push to expand it by adding new rules to the no-fly blacklisting algorithm. But this is exactly the wrong way to go. If a bill to protect air travelers is going to be reintroduced and considered in Congress, it should be the Freedom to Travel Act.
Last year, a bill to create a new pathway to no-fly blacklisting of disfavored travelers by the TSA was introduced in both the House and the Senate. That bill expired at the end of the Congressional session, but is reportedly about to be reintroduced
A misguided editorial in the Washington Post last December referred to “support for a ‘no-fly’ list administered by the TSA for passengers convicted of assaulting a crew member.”
But that’s not what this bill would create. The bill would allow the TSA to blacklist anyone who has been assessed an administrative penalty by the TSA for a variety of civil violations related to “interfering” with another passenger (whatever that means) or “attempting to circumvent any security system, measure, or procedure related to civil aviation security.” We’ve already seen how broadly the US government can construe “circumventing a security measure.”
These civil violations are not crimes, and paying a civil fine assessed by the TSA does not mean that you have been “convicted” of anything, much less of assault. The TSA’s expansive definition of “interference” has included mere verbal criticism of TSA staff.
When it assesses civil penalties, the TSA is prosecutor, judge, jury, and court of appeals. To get to a real court, you first have to contest the citation, raising any issues you later want to raise in court — even if the TSA won’t even consider them. You can ask for a hearing, but it will be a kangaroo-court proceeding conducted without a jury before an administrative law “judge” appointed by the TSA. You can (and, before you can go to court, you must) appeal, but your administrative appeal will be heard by the head of the TSA or their designee.
Only after the head of the TSA denies your administrative appeal are you allowed to go to court. But you must then go directly to a federal Court of Appeals, which is allowed to review the TSA’s penalty decision on only the narrowest grounds. There’s no trial and no jury in the Court of Appeals. The court is required to defer to any TSA findings supported by “substantial evidence” in the administrative record selected and provided to the court by the TSA, regardless of the volume, relevance, or credibility of evidence to the contrary. Judicial review on these terms is a sham.
Did we mention that, because TSA fines are civil and not criminal, you have no right to lawyer at any stage of this process, even if you are indigent? Contesting the TSA’s assessment of a civil penalty to make a sufficient administrative record of your objections, appealing the initial decision to the head of the TSA, and then petitioning the Court of Appeals to review that administrative decision, is likely to cost tens of thousands of dollars in legal fees.
Because this is purely a civil matter, it has no collateral consequences. It’s on a par with paying a parking ticket. The only cost is the civil penalty itself.
It’s scarcely surprising, in these circumstances, that most people against whom the TSA assesses civil penalties pay them without challenge. Most of them can’t afford to challenge the penalty. Even if they could, the procedures are so rigged that the chances of success are slight.
We’ve attended a TSA formal hearing and Circuit Court hearings on petitions to review TSA decisions, and we’ve seen what a joke they are. Even when judges seem to want to do the right thing, they think their hands are tied by the administrative record and “findings” provided by the TSA and the narrow procedures and criteria for judicial review.
Putting people who’ve paid administrative penalties assessed by the TSA on a no-fly list would be like putting everyone who has ever paid a parking fine on a “no-drive” list.
The Dallas Morning News — the hometown newspaper for the headquarters of both Southwest and American Airlines — headlined its editorial last week endorsing the no-fly list expansion bill, “Is it time for a national no-fly list for unruly passengers?”
“Now that masks aren’t the source of the disturbances any more, what argument remains?”, the editorial asks — as though the answer were obvious.
The answer is obvious, although not what the editorial implies. There are numerous obvious reasons not to give the TSA effectively unreviewable authority to put more people on the no-fly list by administrative fiat.
Can we trust that the TSA will use new and broader authority fairly?
Now that we’ve seen the US government’s no-fly list, we don’t have to speculate. We can say with certainty that it’s grossly overbroad and grossly biased. It contains more than 1.5 million names, disproportionately Muslim. Four-year-olds. Hundred-year-olds. Dead people. Osama Bin Laden. Real live people who have never been accused of any crime.
The evidence of the no-fly list itself, and of the repeated exposés of TSA racism and sexism, is clear: The TSA is staffed with Islamophobic bigots, from top to bottom. Whatever their good intentions, those in the TSA who aren’t bigots have proven incapable of reining in their colleagues.
Some TSA staffers will be happy to label anyone uppity or whose looks they don’t like as “unruly” — especially if that will have disproportionately severe and perhaps lifetime collateral consequences — just as bus companies and the operators of bus stations were only too eager to say that Freedom Riders were “disturbing the peace”.
It’s for good reason that a long a line of civil rights case law — won by legal struggle, civil disobedience, and direct action by people asserting and exercising their rights — protects the right to interstate travel by common carrier and requires that restrictions on that right can be imposed only by court orders subject to normal rights of appeal.
If people commit assaults on airplanes, they can be arrested and tried in Federal court. Assault on an airplane is a serious Federal crime, and anyone accused of such a crime is entitled to a commensurate Constitutional level of due process, including a jury trial.
Courts also have the authority to issue restraining orders or injunctions restricting the travel of specified individuals. They do this thousands of times every day, across the USA, in domestic violence cases. But these are adversary judicial proceedings subject to all the usual rules of court procedure and rights of appeal.
But as we’ve discussed before when calls have been made to put more people on the no-fly list by administrative fiat or as a sanction for some other unrelated past action, the US government has never, so far as we can tell, petitioned a Federal court for a no-fly order. Since it has never tried to use its existing legal authority, it has no basis for any claim that existing laws aren’t up to the task of controlling provably “unruly” would-be travelers.
Rather than making a new law to give the TSA more power, the government should try using the existing authority of the courts to prosecute criminals and enjoin criminal acts — without abandoning Constitutional due process or hard-won civil rights to travel.