Since midday Sunday people were sharing to social media a video purportedly showing someone who attended the storming of the U.S. Capitol on Wednesday being denied boarding on Delta Air Lines because he had been added to the government’s No Fly List.
Political activist who occasionally spends time as head of a flight attendants union Sara Nelson had previously called for people who were there to be added to the government’s list of suspected terrorists banned from flying, and the Chairman of the House Homeland Security Committee Bennie Thompson (D-MS) called on the Executive Branch to do the same. The video was supposedly evidence that this was happening.
What Happened In The Video
Here’s a tweet containing the video which is described as, “People who broke into the Capitol Wednesday are now learning they are on No-Fly lists pending the full investigation.”
Given the strong language I’ll skip embedding the video but you can click through to the tweet to watch and listen if you wish.
The passenger in the video yells, “This is what they do to us. They kicked me off the plane. They called me a [f’ing] terrorist, and they [f’in] want to ruin my life.”
Another woman in the video tries to calm him, offering that she was “kicked off of Delta earlier” too.
The Video Had Nothing To Do With The No Fly List
I shared on social media yesterday that the description of the video didn’t quite add up. The man had checked into his flight and he had gone through security. He was clearly airside in the video and denied boarding at the gate. That’s not usually how the government’s No Fly List works.
And indeed the video appears to have been taken out of context by people who weren’t there to witness the incident.
Originally the video was posted to TikTok (HT: @David_Slotnick) and the person who posted it did not reference the No Fly List at all. Instead they wrote, “Homeboy had a full toddler level meltdown bc he was told to wear a mask.”
Others took the video and added the description about the No Fly List, perhaps combining the calls for use of the government’s arbitrary ban on travel with a person who was banned from travel and assuming that’s what had taken place, or perhaps with less honorable intent.
The No Fly List Is A Civil Liberties Nightmare
The ‘No Fly List’ is the government’s pre-crime profiling that keeps people off of U.S. airlines and airlines flying to the U.S. It’s a secret list that people haven’t been entitled to know they are on (until 2015), how they got on, or to confront the evidence relied upon to put them on it. Legally there is very little recourse, and when challenged the government claims ‘state secrets.’
Formal responsibility for the list rests with the TSA and under 49 U.S.C. § 46110 inclusion is only reviewable by circuit courts in which judges are required to defer to the TSA’s judgment about all alleged facts and are permitted only to review the administrative record created by and provided to them by the TSA itself.
That’s how people get on the list by mistake (FBI agent checking the wrong box on the form) and even maliciously (such as retaliation for refusing to cooperate in an investigation). People have gotten on by mistake (having a name similar to someone else).
Investigations are taking place after last week’s events and arrests are being made. After those attacks we must follow the Rule of Law precisely because that’s what protestors were attempting to subvert when they moved from exercising freedom of speech to physical assault in an attempt to stop the counting of electoral ballots.
Capriciously denying the freedom of travel, without trial, is precisely the mob rule outside of the rule of law that we’re supposed to be pushing back on. The last thing we need is an open-ended response, like a new Patriot Act or limits on freedom of speech, that puts people on the No Fly List for conduct (even criminal conduct) in advance of trial, and when losing the ability to fly on commercial airliners in not proscribed punishment in law.
Individual airlines are free to choose to ban passengers. That appears to be what happened here. Having the government ban travel on all airlines without judicial review is frightening in a democracy.
And if it’s justified now in being used against people not yet convicted of crimes then it will be used against unpopular people later the way that sedition laws were used against Eugene Debs, sending him to prison for an inflammatory speech in wartime that didn’t directly encourage violence, or the way the government cracked down on the Socialist Workers Party for antiwar rhetoric in World War II. Remember that expansions of power will be used later by the people you hate when they have power. Any new power should be one you’re comfortable with the next President Trump having and using.
Those who have committed crimes should be charged, tried, and punished under existing law, they shouldn’t be punished prior to being convicted and punishment shouldn’t include loss of freedoms that aren’t included as penalties for violations of the laws that have been broken. Certainly Americans shouldn’t have freedoms taken from them when they haven’t even been charged with a crime.