The un­friendly skies

Austin American-Statesman - - OPINION -

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.

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