The unfriendly skies
On the face of it, they’d seem to have little in common. One is a disabled former Marine, born in Miami and living in Egypt. Another is a 28year-old student from Corona, Calif., a German citizen and permanent resident of the United States. Another is a refugee from Guinea who works as a caregiver for a family in New York. Another is an Air Force veteran and retired fireman, originally from Las Cruces, N.M.
There are 10 of them in all, 10 individuals from 10 walks of life who it turns out do have something in common not only with one another, but also with several toddlers, nuns and the late Sen. Edward M. Kennedy. Namely, they’ve all been refused permission to board planes bound for, or traveling within, the United States, because their names showed up on a terrorist “no-fly” list.
As of last week, the 10 have something else in common. They are plaintiffs in a lawsuit filed by the ACLU against Attorney General Eric Holder, FBI Director Robert Mueller and Timothy Healy, director of the Terrorist Screening Center. The ACLU is seeking an injunction on behalf of individuals who, as the suit puts it, “the government deems too dangerous to fly, but too harmless to arrest.”
It’s more than a clever turn of phrase. It is also an apt description of the legal limbo to which the government has consigned an untold number of innocent people in the name of fighting terror.
Here’s how it is when your name is on the no-fly list: They won’t let you fly. They won’t tell you why. They won’t show you the list. They won’t take your name off the list. They won’t give you any way to appeal. The list, then, is a purgatory to which one can be consigned in perpetuity with neither due process nor judicial review, because one’s name happened to be similar to that of some bad person. And there is no form you fill out or person you can talk to to have the error corrected. You’ve simply got to live with it.
Of all the insults to personal liberty imposed by George W. Bush’s War on Civil Rights, this is in some ways the most profound. And it is fitting, as we mark the 234th anniversary of American freedom, that the ACLU lawsuit forces us to ponder a fundamental question: What sort of freedom is this?
It calls to mind a poignant scene from history. When the Civil War ended 145 years ago and slaves were told they were free, many struggled to define the word. In candlelit meetings in barns and bogs, they debated it. What does freedom mean? How do you know you are free?
And many decided that if freedom meant anything, it meant they could move around without permission or pass. So they tested it. They walked away. They walked across towns, across states, across country. That was, they decided, the fundamental definition of freedom: It meant that you could go.
The stakes in the ACLU lawsuit, then, are higher than just an annoyance or an inconvenience.
The suit is also about, perhaps mostly about, the abrogation of an inalienable and indispensable right — the right to go — from people who have been accused of no crime.
No one disputes the need for tight airline security. If there are certain individuals who should not fly because the government reasonably believes their associations or activities suggest a threat to a jetliner, so be it. Those are sensible precautions.
But the federal no-fly list is an overly broad “caricature” of sensible precautions. It is hard to imagine anything more un-American than the idea one could wind up on a secret watch list with no explanation or recourse in the event of mistaken identity.
What kind of freedom is that? It’s simple, really.
That’s not freedom at all.