In a stunning revelation, the U.S. Department of Justice has admitted that the government’s no-fly list is based mainly on “predictive assessments” of potential threats rather than a history of criminality. Whether someone should be on the list is, essentially, just a guess.
The acknowledgement of the criteria for placement on the no-fly list revealed that individuals must only pose a “reasonable suspicion” of threat, well below the accepted legal standard of probable cause.
With no effective recourse for being placed on the lists, and the number added to these lists in the hundreds of thousands per year, the system effectively subjects law abiding Americans to random chance of having their travel privileges revoked.
Following an ACLU case ruling in Oregon in 2014, the government announced in April of this year that U.S. citizens and lawful permanent residents would be notified of their placement on the list and possibly given reasons for the designation.
The ACLU maintains that the means of challenging these designations still does not satisfy rights of due process by refusing access to live hearings and witness cross examination, placing those on the list in a state of limbo.
The Obama administration is fighting to block any further revelations on how the assessments are made based on the defense of “national security.”
Assistant director to the FBI’s counterterrorism division, Michael Steinbach, explained the government's justification saying, “If the Government were required to provide full notice of its reasons for placing an individual on the No Fly List and to turn over all evidence (both incriminating and exculpatory) supporting the No Fly determination, the No Fly redress process would place highly sensitive national security information directly in the hands of terrorist organizations and other adversaries.” Through knowledge of the DHS guidelines for placing individuals on the list, the process could be manipulated.
The ACLU counters such arguments by claiming the high error rate of DHS predictive assessments negates the benefits provided from the program.
Former CIA counterterrorism analyst Marc Sagemen backed the ACLU’s argument on Friday stating, “There is no indication that the government has assessed the scientific validity and reliability of its predictive judgments or the information that leads to those judgments, nor has it used a scientifically valid model for predicting, and accounting for, the rate of error that might arise from those predictive judgments. Due to these failures alone, the government’s predictive judgments cannot be considered reliable.”
Despite the government’s partial concession in notifying those placed on the dreaded list, the fact remains that challenging that assessment lacks the constitutional protections afforded to those subject to an actual criminal charge.