Op-Ed: No-Fly List Needs Improvements After the attempted attack on a Northwest Airlines flight, some have argued for an expanded no-fly list to protect travelers. But attorney Justin Florence believes allowing wrongly listed travelers to do more to clear their names would be a better step to improve passenger safety.
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Op-Ed: No-Fly List Needs Improvements

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Op-Ed: No-Fly List Needs Improvements

Op-Ed: No-Fly List Needs Improvements

Op-Ed: No-Fly List Needs Improvements

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After the attempted attack on a Northwest Airlines flight, some have argued for an expanded no-fly list to protect travelers. But attorney Justin Florence believes allowing wrongly listed travelers to do more to clear their names would be a better step to improve passenger safety.

Read Justin Florence's op-ed in the Washington Post, "A Better No-Fly List"


And now, the Opinion Page. There's news today that the government no-fly list just grew by dozens of names. Since the attempted attack on a Northwest Airlines jet, many pushed for this expansion. Still, the no-fly list faces persistent criticism. It's much too broad for some, as it includes innocent travelers who happen to share a name with a suspected terrorist. Or it's far too narrow and does not include dangerous individuals who slip through the cracks and try to blow up commercial airliners.

In an op-ed published in the Washington Post, Justin Florence argues there is a better way to make passengers safer. The government should make it easier for people who find themselves on the no-fly list to clear their names. Well, if you've ever been stopped in an airport and told you can't fly, tell us your story. 800-989-8255. Email us: talk@npr.org.

Attorney Justin Florence is also a fellow at the Georgetown Center on National Security and the Law, and he joins us here in Studio 3A. Nice to have you with us today.

Mr. JUSTIN FLORENCE (Attorney; Fellow, Georgetown Center on National Security and the Law): Thanks for having me.

CONAN: And so how do people find out that they're on the no-fly list in the first place?

Mr. FLORENCE: Well, what's happening all too often today is that people just show up at the airport, planning to get on a flight and are stopped at the way into security and told to come over here and, at a minimum, we need to ask you some more questions or do some more searching. Or perhaps even more if they're on the actual no-fly list, I'm sorry, you can't get on the plane.

CONAN: As I understand it, there are three separate lists, and we learned all of this in the last few days. There's...

Mr. FLORENCE: I think at least three.

CONAN: Yeah. Well, at least. But the TIDE list, which has about half a million names on it, then a smaller list of names, which includes people who would be selected out for extra screening, and then a relatively small - thousands, 4,000, I think - names of people who are on the no-fly list, under no circumstances will you be allowed to get on a commercial airliner.

Mr. FLORENCE: That's right. And it seems to be that there's been some flux on the size of these lists over the last few years. As recently of few years ago, there were reports, and the Department of Homeland Security and TSA had been put out publicly how many numbers where on these lists. But there where reports that the no-fly list itself contained hundreds of thousands, if not more, names. And it seems that there has been a lot of negative publicity about the list, and it seems likely that in reaction to that...

CONAN: It got much smaller.

Mr. FLORENCE: ...the department has shrunk it down a lot, to where it's only a few thousand names now. And, obviously, in light of the Northwest Airlines passenger, the size of the list is going to extend dramatically, it seems. And you mentioned in the opening that the department's announced that a couple of dozen more people are being added to the list. But I would be surprised if it's anywhere near that small and would expect that it will grow drastically again.

CONAN: So let's say you discover that your name is very close to that of a suspected terrorist, and all of a sudden you find yourself on the no-fly list. What you're suggesting is that the way to police this list is to have a way for people to challenge their place on the list.

Mr. FLORENCE: That's right. And there are actually two components to what I suggest. The first is that you should be able to find out in advance of your flight whether you're on the list.

CONAN: Right. You just can't have a list on a Web site.

Mr. FLORENCE: And I agree with that. We don't want something that would be too easy for people to just run a bunch of different fake identities against until they find one that works. But what I suggest is why not have it so that at various federal locations - maybe airport security offices, U.S. embassies overseas, other federal buildings. Travelers can walk in off the street and say, here's who I am. Here's my ID. I have a flight on this date. Am I going to run into trouble?

And, you know, the argument can be made, well, we don't want to let people know if they're on the list, because that ruins that element of surprise. But my instinct is that people who are actual terrorists, who are - who have reason to worry about this are not likely to come in and to check in advance and find this out. And it's more the people who have had some hassled experiences or maybe are a particular ethnic or religious group and feel like they're likely to run into trouble, that this would give them an opportunity to assure themselves in advance that they're going to be okay.

CONAN: And there will be, inevitably, in any system, some bureaucratic slip-ups, and some people who should not be on that list will be on that list.

Mr. FLORENCE: Absolutely.

CONAN: And this would then - how would they get themselves off the list?

Mr. FLORENCE: So my - the second part of my suggestion is that the government should provide an administrative hearing process where people who are - so let me back up and say we might divide this into two categories of people. One is just the mistakes and the accidents and the people with an overlapping name. And there, it should be relatively straightforward for the government to just collect a little bit more information from the person, update their list, and get things taken care of in advance of the flight.

CONAN: Please start using your middle name, and we'll get you on the plane. Yeah.

Mr. FLORENCE: Exactly. And, actually, the DHS and TSA already have a sort of Web site where you can send in a little bit more information about yourself. And I think this probably isn't working nearly as effectively as it should, but the structure is in place for something like that.

The more difficult question is when you have people who the government says, no, you really are on the list. We got the right guy here. And you say, that's crazy. Why am I on this list? And for that class of people, the more difficult group, I think that the government should provide them some sort of administrative hearing where they can come in and make the case that, hey, you've got the wrong guy here. You know, I know maybe somebody gave you a tip that I was in contact with some dangerous people or maybe you have some intelligence asset that I made some communications. But let me clear that up and explain why, really, that I was innocent. You know, I dialed the wrong number, or I was doing an academic research project.

CONAN: Well, to have - to know that you're on the list because of a false tip or some thin read like that, you would have to look at the intelligence. And they're not going to be happy to share that intelligence.

Mr. FLORENCE: No, they're not at all. And what I suggest to get around that is that the government can make available to people - and I actually think the government could pay for this and provide it to people - attorneys with security clearance who can represent you, who can work on your behalf and who can get in and look at this classified evidence and be able to sort of help you challenge it and help you...

CONAN: So they can see the intelligence. They may not be able to share it with you...

Mr. FLORENCE: Exactly.

CONAN: ...but they can see it.

Mr. FLORENCE: Exactly. And, of course, you know, no system is going to be perfect, here. And there are all kinds of difficulties in these situations about what type of communications can happen between the lawyer and the client and how you sort of draw boundaries there. But I would hope that in this type of situation, you know, you can have conversations like, well, the government believes that you've been in touch with certain people. You know, why are you calling Pakistan or...

CONAN: Mm-hmm.

Mr. FLORENCE: ...you know, why were you visiting this place at this time? And through that sort of process, if you really are put on by mistake, that the person can work out a way to get off.

CONAN: We're talking with attorney Justin Florence about his op-ed that ran in the Washington Post: "A Better Way to Run the No-Fly List." You're listening to TALK OF THE NATION from NPR News.

Let's get Miles on the line, Miles calling us from Cleveland.

MILES (Caller): Hi. I have an interesting story. I'm not on a no-fly list, but for - between 2003 and 2007, I was searched every time I flew.

CONAN: So you may have been on that middle list.

MILES: Yeah. Yeah. Well, I think it was because that I was involved in the anti-Iraq war protests with some anarchists and communists who were under suspicion.

CONAN: That - not an unreasonable supposition.

MILES: But what I found was that it was really easy to get through security screenings because I could just walk up to the front of the line and point out that I had 4S status on my ticket. And it only took me two seconds to get through, like, the whole line process. Screening took longer, but...

CONAN: You didn't have to wait on the snake, but the screening took longer. But you didn't have to wait on the snake.

MILES: Right.

CONAN: All right. And are you now off that list, Miles?

MILES: I believe so. I have flown clear for the past couple of years. So it's kind of a relief, but it makes a good story.

CONAN: All right, Miles. Thanks very much.

MILES: Thank you.

CONAN: Appreciate the phone call. The quadruple S on your boarding pass, a tipoff from the airline to the TSA screeners that this person merits special attention.

Mr. FLORENCE: And it sounds like he may have been one of the beneficiaries of the purge of the watch list over the last couple of years.

CONAN: It could have been. Or if they're adding more names to the no-fly, he may find himself back on the list. In any case, this sounds like this could be an expensive procedure for the government. You could describe it as the national security lawyer employment program.

Mr. FLORENCE: It could be that, but I actually think that in comparison to other types of security measures that have been suggested or that could be put in place, something like this is actually pretty cheap. It doesn't involve expensive new equipment like full body scanners or more expensive hiring of people to do screening in every airport. And my guess is that we wouldn't be talking about large numbers of these hearings and large numbers of people challenging their listing.

I think that there are probably very few actually dangerous people who are going to want to come in there and go into DHS headquarters or someplace like that...

CONAN: And argue their way...

Mr. FLORENCE: ...and try and figure...

CONAN: ...through this long procedure.

Mr. FLORENCE: Right.

CONAN: And if you suddenly find yourself out of the country and on this no-fly list, you could get hung up for a long time.

Mr. FLORENCE: Absolutely.

CONAN: And what's the procedure now?

Mr. FLORENCE: There really isn't one. As I mentioned, TSA and other parts of the government have a Web site, a redress program on the Web site where you can sort of fill out some more information and hope for the best. But there is no sort of hearing process in place, at least that I'm aware of, where people can say, no, this isn't right. I shouldn't be on this list.

CONAN: Could you appeal to the inspector general of the Homeland Security Department?

Mr. FLORENCE: Perhaps. I mean, you could follow up...

CONAN: Is there an ombudsman or something like that?

Mr. FLORENCE: There is an ombudsman, but it's not clear that people have had success. You could always, you know, file a lawsuit. And I think there is a case to be made that at least U.S. citizens have some constitutional right to be able to travel freely within the country and - but no traction's been had on those fronts yet.

CONAN: Email from Steven in Greenbrier(ph): During the Bush years, Senator Ted Kennedy found himself on the no-fly list and had some difficulty getting off. This was clearly a political abuse of a list that should have been investigated.

We just checked, and indeed, he was on the list at one point.

Mr. FLORENCE: He was, although I'll also say that Republican Congressman Don Young from Alaska I know was on the list, as well. So, you know...

CONAN: Either of them ever find out why?

Mr. FLORENCE: Not to my knowledge. My guess in both of those cases is that it is this first category, where there is some sort of overlapping name, if, you know, the government had some reason to suspect that somebody else with that name or a name like that. And one thing that causes a problem here is that, you know, people who have names spelled in American or English letters can have it a little easier. But when you translate from different alphabets and different languages, you end up with multiple permutations of the same name on the list. And...

CONAN: Multiple permutations of Edward M. Kennedy?

Mr. FLORENCE: Well, so, you know, that one may not fit the bill, but my guess is that it was not a political retribution against the late senator, but that it was more an innocent explanation.

CONAN: Any idea - you've published this - what's been the reaction to this idea?

Mr. FLORENCE: It's been good from folks who have reached out to me and emailed me. You know, I have heard the concern about the question you raised about how much is this going to cost. And the other thing that I'll say on that point is there's a lot of discussion in these conversations about national security and civil liberties about how there's a tradeoff, and we have to balance one against the other.

And I think it's often a little bit more complicated than that in that spending more money, you can sometimes get the best of both worlds. And I think this might be one of those areas, where we can get the good security benefit of having a robust list that isn't so limited that people who actually want to get on Northwest Airlines' plane and blow it up are off the list, but that we also don't have the civil liberties interference. And so I hope that a little bit of expense could help there.

CONAN: Justin Florence, a lawyer here in Washington, a fellow at the Georgetown Center on National Security and Law. We have a link to his op-ed at npr.org. Click on TALK OF THE NATION. Thanks very much for coming in today.

Mr. FLORENCE: Thanks for having me. I appreciate it.

CONAN: Tomorrow on TALK OF THE NATION: We spend billions to treat both type 1 and type 2 diabetes. Each year, more people die of it. We'll talk to Dan Hurley about his new book called "Diabetes Rising." That's tomorrow.

This is TALK OF THE NATION from NPR News. I'm Neal Conan in Washington.

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