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Thursday, January 14, 2021

Why Adding Accused Capitol Rioters to the ‘No-Fly’ List Threatens Civil Liberties

No-fly lists are an idea so bad they never should have left the ground.

Image Credit: Ted Eytan

Last week, an angry mob of Trump supporters stormed the US Capitol. They believed that the November presidential election had been “stolen” from their leader and were attempting to block Congress’s certification of the results. It was a violent event that left five people dead, including one police officer.

In the wake of this incident, the FBI is considering placing those who allegedly participated on the federal no-fly list. Numerous political figures have thrown their support behind the idea, including Senate Minority Leader Chuck Schumer, who is poised to take over as the chamber’s majority leader in coming weeks.

“We cannot allow these same insurrectionists to get on a plane and cause more violence, and more damage,” Schumer said.

Two members of the House Homeland Security Committee, one Democrat and one Republican, wrote a letter to Transportation Security Agency (TSA) Administrator David Pekoske stating “little is being done to disrupt the travel of terrorists who just attacked the seat of the U.S. Government and wish to do so again.” They went on to express concern that “many of the same groups that planned and carried out Wednesday’s attack intend to return to Washington, DC, to cause further disruption and violence in the coming days, including at the inauguration of President-elect Joe Biden.”

With the inauguration right around the corner, and numerous threats of attacks on state capitols filling the airways, it is understandable that some would seek to prevent future violence by limiting the movements of those they suspect to be a threat. While those advocating for expanding the no-fly list may have good intentions, this could threaten civil liberties in the long-run.

While those advocating for expanding the no-fly list may have good intentions, this could threaten civil liberties in the long-run.

No-fly lists were first implemented in the wake of 9/11, before the TSA was even created. The first list was given to the Federal Aviation Administration by the FBI and contained 125 names. Since its formation, the TSA has administered this list. Anytime you check-in for a flight your information is run against the TSA’s Secure Flight database to determine whether you will be allowed to fly.

From the very beginning, the no-fly list has been shrouded in secrecy and administered without oversight, due process, or checks and balances. How many people are on the list? What qualifies a person for inclusion? We don’t know the answers to these very basic questions, because the information is classified and labeled as sensitive security information.

Many innocent people have ended up on the no-fly list, including the late Senator Ted Kennedy and Representative John Lewis. Well-known singer Cat Stevens, whose real name is Yusuf Islam, once found himself on the list. A mother of an 18-month old child was once informed upon arrival at an airport that her daughter had been placed on the list. (That incident was later blamed on a glitch by JetBlue, but there have been multiple other reports of children under the age of 10 being similarly delayed.)

In another instance, the FBI placed three Muslim men on the no-fly list in an attempt to coerce them into becoming informants.

Muhammad Tanvir, a former long-haul truck driver, has never been arrested or charged with a crime. Yet he was added to the list along with two others after repeatedly refusing to become an informant for the FBI, a role which would violate his religious beliefs. After being placed on the list, Tanvir was forced to quit his job as he was no longer able to fly home after making deliveries. He’s also been unable to go visit his ailing mother in Pakistan. A pending lawsuit has been filed on this matter.

Tanvir’s story is just one example of the dysfunction and injustice that has plagued the no-fly list since its inception. Any government system is ripe for fraud, abuse, and error. These systems are run by humans and we know that humans are fallible.

It is for this reason our government was designed to ensure individuals had access to due process and representation before their rights could be removed. It is also why the Constitution institutes numerous checks and balances on the power of leaders to take away our rights.

And make no mistake: Freedom of movement is an essential, natural right. As Adam Smith said in The Wealth of Nations, “There must be free movement for all in the system so that each man might seek the best opportunity for his labor or resources.”

Make no mistake. Freedom of movement is an essential, natural right.

Even with due process and our system of checks and balances, we have discovered thousands of wrongful convictions in our justice system and find more every year. It is unthinkable that the FBI has the unilateral and opaque power to restrict movement rights without due process.

Removing essential rights without a conviction not only means the government will inevitably wrong innocent people, it also means aggrieved citizens will have few avenues to get their rights back. Without a conviction, representation, or even an explanation as to why they’re been placed on such a list, individuals have little recourse to correct errors, prove their innocence, or earn their rights back.

We can agree that those responsible for the attack on the Capitol should be apprehended and held accountable for their actions. Those suspected of crimes should receive a full trial where the government is required to prove its case beyond a reasonable doubt.

Then, and only then, should it be possible for an individual to be placed on the no-fly list.

  • Hannah Cox is the former Content Manager and Brand Ambassador for the Foundation for Economic Education.