The List

One of my major pet peeves (if you can characterize a desire to uphold our constitutional rights as a pet peeve) is the TSA's "No Fly List." My main objection is that The List is a secret list, with information gathered by the government from various sources (including, no doubt, the various illegal spying efforts that the FBI and others have engaged in), that has information about you that you are not permitted to see, challenge or be removed from. More Power than Law. The true size of The List is unknown. See, Big Brother Run Amuck: 435,000 Americans in "Terrorist" Database. Numerous errors have been reported, to no avail.

Mark Graber of Balkinization, in Another Enemy of the People?, published a letter from Professor Walter F. Murphy, emeritus of Princeton University, who is a scholar of public law in political science, constitutional theory and judicial behavior, who had problems on a recent flight:

"When I tried to use the curb-side check in at the Sunport, I was denied a boarding pass because I was on the Terrorist Watch list. I was instructed to go inside and talk to a clerk. At this point, I should note that I am not only the McCormick Professor of Jurisprudence (emeritus) but also a retired Marine colonel. I fought in the Korean War as a young lieutenant, was wounded, and decorated for heroism. I remained a professional soldier for more than five years and then accepted a commission as a reserve office, serving for an additional 19 years."

"I presented my credentials from the Marine Corps to a very polite clerk for American Airlines. One of the two people to whom I talked asked a question and offered a frightening comment: "Have you been in any peace marches? We ban a lot of people from flying because of that." I explained that I had not so marched but had, in September, 2006, given a lecture at Princeton, televised and put on the Web, highly critical of George Bush for his many violations of the Constitution. "That'll do it," the man said. "

"After carefully examining my credentials, the clerk asked if he could take them to TSA officials. I agreed. He returned about ten minutes later and said I could have a boarding pass, but added: "I must warn you, they=re going to ransack your luggage." On my return flight, I had no problem with obtaining a boarding pass, but my luggage was "lost." Airlines do lose a lot of luggage and this "loss" could have been a mere coincidence. In light of previous events, however, I'm a tad skeptical."

"I confess to having been furious that any American citizen would be singled out for governmental harassment because he or she criticized any elected official, Democrat or Republican. That harassment is, in and of itself, a flagrant violation not only of the First Amendment but also of our entire scheme of constitutional government. This effort to punish a critic states my lecture's argument far more eloquently and forcefully than I ever could. Further, that an administration headed by two men who had "had other priorities" than to risk their own lives when their turn to fight for their country came up, should brand as a threat to the United States a person who did not run away but stood up and fought for his country and was wounded in battle, goes beyond the outrageous. Although less lethal, it is of the same evil ilk as punishing Ambassador Joseph Wilson for criticizing Bush's false claims by "outing" his wife, Valerie Plaime, thereby putting at risk her life as well as the lives of many people with whom she had had contact as an agent of the CIA. ..."

Irony of ironies -- the fall Princeton Lecture that Murphy was speaking on was titled: "The Constitution, Dead or Alive?," as part of James Madison Program on American Ideals & Institutions. Silly lecture, that -- the answer is obvious.

Of course, the Bush apologists (all 10 of them) are pooh-poohing Murphy's claim, saying there is no evidence that this sort of thing is occurring. A follow up piece on Balkinization, What Professor Murphy's story tells us about the no-fly list, says that although Murphy's recitation is no doubt accurate, there may be other explanations for what actually got him on The List. Such as? Perhaps it was for another reason, Not so Friendly Skies, such as being getting caught up by US Marshalls who place innocent people on the Watch List to meet quotas.

However, doesn't this just prove what the problem is? Isn't the problem that The List is secret, and is compiled without being given any "due process" rights to challenge the evidence (or even be apprised of the charges) that places one on The List (before or after the fact)? Perhaps The List is being abused as a way to stifle dissent. Who knows? You know -- like those cases where lists were complied by the FBI of anti-war protesters? The New Black, the Color of Anarchy. Fact is, I believe this government is capable of doing just that. See also, Concurring Opinions, Criticize Bush, Get Extra Airline Screening?

Let the government prove me wrong.

Tags: Civil Liberties, Law, TSA, No-fly List