Government Defends FBI Agents Placing Innocent People On No Fly List

The reason we’re required to show ID at airport security is so that the government can check who we are against No Fly and other watch lists. That’s the reason for REAL ID requirements (that haven’t yet been implemented after nearly 20 years) and why they’re concerned that CLEAR allowed three people over the past year to skip TSA ID checks without having their identities verified.

But the underlying No Fly and watch lists that require extra security screening are, themselves, flawed.

  • No Fly Lists include people added by mistake (FBI agent checking the wrong box on a form or having a name similar to someone else)
  • And even added maliciously (such as retaliation for refusing to cooperate in an investigation).

These lists are supposed to be used for those who are genuinely dangerous, that need to be kept off of aircraft, but the lists have been misused both intentionally and unintentionally. People who shouldn’t be on them get placed on them, and there’s a byzantine process for getting cleared. The government even ignores some requests, until victims (passengers) sue and reach the point where the existence of the lists and its procedures would come under judicial scrutiny and challenge over whether they’re even legal. Then the government may remove the litigant from the list, mooting their suit, to prevent the case from proceeding.

Two decades ago a group of innocent Muslims – never charged with or even accused of any crime – were pressured by the FBI to become informants on their community. When they refused, they were placed on the No Fly List in retribution. One of them has been suing and it’s taken decades for their case to finally be heard. They lost their job as a long haul trucker (they’d drive one way and have to fly back), they lost money on tickets they’d purchased, and of course they lost the option to fly. And no one contends they’d done anything wrong at all.

In 2020 the Supreme Court held that they could sue, however the Biden Department of Justice (so this position is not limited to Republican administrations) through the Southern District of New York argues that:

  • sure there was a violation of constitutional rights
  • but it had never previously been ‘clearly established’ that denying someone their constitutional right to travel as retribution was wrong
  • so the agents who did it should be immune from lawsuit

“Qualified immunity” applies unless a prior court held that the same situation was unconstitutional in the past. Clear misconduct violating rights isn’t enough to sue – government employees would have to had engaged in the misconduct after a ruling declaring it illegal. In other words, as long as employees of the government keep coming up with new kinds of misconduct, they can never be held to account.

U.S. District Judge Ronnie Abrams agreed in February that “the right not to be pressured by law enforcement to inform on members of their religious communities through the coercive or retaliatory use of the No Fly List… [was] not clearly established at the time of the alleged violations.” Federal agents, according to the judge, could not reasonably have known that sticking people on the No Fly List for defying them was wrong. There have been many such cases.

I used to think that the point of having a Democrat in the White House was to curb these sorts of abuses, but remember that President Obama sought to extend the use of No Fly Lists to limiting other constitutionally-protected activities (gun ownership). And here the Biden administration defends the use of arbitrarily adding people to those lists.

Using unreviewable, secret and often arbitrary Minority Report-style pre-crime profiling as a basis for denying any kind of right is a huge departure for our system of justice. The U.S. Court of Appeals is considering whether the district court erred in agreeing with the Biden administration. Ultimately cases like these (among many others) should lead to a reconsideration of the doctrine of qualified immunity.

About Gary Leff

Gary Leff is one of the foremost experts in the field of miles, points, and frequent business travel - a topic he has covered since 2002. Co-founder of frequent flyer community, emcee of the Freddie Awards, and named one of the "World's Top Travel Experts" by Conde' Nast Traveler (2010-Present) Gary has been a guest on most major news media, profiled in several top print publications, and published broadly on the topic of consumer loyalty. More About Gary »

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  1. Power corrupts. You don’t get to the top by bucking the entrenched system, especially after Citizens United fully closed the loop between Congress and the big corporations by making bribery perfectly legal. Anyway, the Security Complex is just as big, clumsy and often hopelessly inefficient and expensive as the Military-Industrial one. In fact, they greatly overlap. Here and there you get a brave judge or bureaucrat with some sense, maybe even a vision of a better way for things to be, but few if any can afford to question the fundamentals of the system. Really, throughout history the same pattern always repeats, that no matter what ideals an institution begins with at bottom it just wants to preserve itself.

  2. This is a prime example of what is wrong with our government today. Abraham Lincoln, in his Gettysburg address, spoke of “…the government of the people, by the people and for the people shall not perish from the earth.” What happened to derail noble idea? The current state of affairs is a prime reason that there should be term limits. Beware and be careful of the people we elect and re-elect. One only has to look at the dysfunction in California, Oregon, Washington state, DC and many other states. We, as a nation, have failed our population by not teaching civics and American history, with all of its warts and failures. Most young people today have no idea about the three branches of government and how the founders of this country intentionally made this a democratic republic. They intentionally did not want a government ruled by a “simple majority”.

  3. So you thought that having a Democrat in office would preclude these abuses.
    You are brainwashed, naive, and biased,
    You must be desperate for topics.

  4. “ I used to think that the point of having a Democrat in the White House was to curb these sorts of abuses…”

    Good God, how can a person be this naive?

  5. No, the reason you have a Democrat in the Presidency is so that the President doesn’t interfere with the Justice Department.

    It’s not the job of the Justice Department to change the law, it’s the job of the Justice Department to defend the government according to what the law is, regardless of political considerations.

    With any luck, the case gets appealed and the courts finally ditch qualified immunity. Until then, you have to blame the responsible party: Congress, who can end qualified immunity at any time.

    Well, really, you have to blame Republicans in Congress who oppose doing so, and maybe the Republican-nominated Supreme Court justices who don’t appear interested in overturning it either.

  6. “Good God, how can a person be this naive?”

    If you visited this site during the height of the scamdemic you would have seen it on full display.

  7. The answer to this abuse is to fix the system, not throw it out. If there are problems with a prison system do you just shut all prisons down and release every prisoner or do you fix the problem?

    I don’t like these abuses either but what proportion of the no-fly list is comprised of them? Let’s put things in perspective.

  8. @Win Whitmire

    Not sure Lincoln is the best example considering his constitutional abuses, among them suspending the writ of habeas corpus.

  9. What a great article !! And how absolutely TRUE it all is. And how very very very sad that our Republic has ever gotten this far off track. And I hope that people (Senators, Representatives, President, Judges) come in and smack the living crap out of these bureaucrats. I read once that it is estimated that 2 million Americans are on the “naughty” list. No one knows (because TSA and the FBI aren’t saying) what the number is.

    You think it can’t happen to you??? Dream on. I am a licensed, board certified physician. I have licenses in several states. And a DEA Controlled Substances Permit (so that I can prescribe these for my cancer patients). Never, EVER had any issues with state or federal authorities on any of these. And each year, I go through the equivalent of a body cavity search as I have to renew licenses and permits. But that is just how it works. And, again, never any problems on any of that.

    About 5 years ago, four of us doctors went to our usual place in the Caribbean to play golf (36 holes a day for 3 days – whew !!). Stayed at the same villa. Had the same 2 older lady housekeepers come to cook and clean. When my flight landed in Miami, I used my usual Global Entry, but it got flagged. Not sure why. Anyway, I ended up in the bowels of MIA, where they searched every inch of my luggage. No issues – I cooperated, and after about an hour, they found zero, zip, nada. And send me on my way (missed my flight … sigh).

    About 5 days later, I received an email notification from TSA that my Pre-Check and Global Entry were revoked (not suspended, not warned on, nope – REVOKED). Why? What for? I cooperated fully with the inspection. There was nothing in my luggage anywhere (because I never do anything illegal – although each evening after dinner, we did sit by the beach (our villa is on the beach) and drink a few beers …

    No Senator (I asked two to help me), no Congressman (asked one to help me), no court (I tried to file suit against the TSA, but an attorney who I hired said that the case would go nowhere) could help me. And for what??? My biggest “crime” in my life was (I am not making this up) a speeding ticket when I was 18 (long time ago) for going (wait for it … wait for it) 10 miles per hour (the speed limit on Daytona Beach was 5 mph). Yep. Hardened criminal that I am.

    I just recently got my TSA Pre-Check back. The US Senator who has been helping suggested that I “stop”, and don’t call attention to this by applying for Global Entry.

    This is the most idiotic friggin program out there. Someone, somewhere has decided that (somehow) I am a danger. Wow. How the butt-friggin H did we ever get to this point?


  10. It’s hard to say Christian, but the precedents aren’t good. I once wrote an article on organized crime and found a list of “Mafia” members the FBI had given Congress in the 1950s. It was hopelessly messed up with duplicates, dead people, and wrong names…the correct information was in numerous books and articles of the period but nobody had checked them. (But then Hoover’s boys once spent 18 months trying to decode “Louie, Louie” rather than read the copyrighted lyrics or talk to the composer, who lived in D.C.) Even Nixon’s famous “Enemies List” included ambiguities and errors, and that was pretty short. So just with tens of millions of people in the world named “Mohamed” you can imagine what a mess this is going to be.

  11. @James N
    Yes, and your posts led the icons of naivety and extremist B.S!
    The Chump Fool that you are continually shows. Make sure you vote for the scum ball and put him back in office.

  12. @Christian “I don’t like these abuses either but what proportion of the no-fly list is comprised of them?”

    I would feel better about that position *if* they didn’t try to defend the offense when it’s brought to their attention. *IF* the response of the FBI/TSA was to immediately fire anyone involved in using the No Fly List as a means of retaliation I might agree. But they didn’t. Instead, the FBI and TSA *as institutions* double down and bluntly argue that it’s OK for them to do this type of abuse.

    Therefore, the only way to stop it, is to eliminate it.

  13. @Joe

    Lincoln didn’t fight to end slavery. He fought to enslave the South. It’s disgusting that we are taught Lincoln was a hero when all he did was kidnap millions of people who left the union and did not consent to be part of it. What happened to consent of the governed. The day Lincoln went to war with the South was the day the real constitution died. It’s null and void. America died.

  14. The use of these blacklists are part and parcel of the ever increasing power of the government (and government contractors) to monitor and control any and all people subject to US jurisdiction or subject to jurisdiction of “allies” who go along to get along with the US Government.

    And the pool of kiss-ups hiding behind “it’s for your safety/security, so you really shouldn’t oppose this” type narratives are unfortunately both bipartisan and widespread enough that it means bad things for a general public which fails to fully appreciate the current state of affairs and what is on the horizon. 1984 is coming into reality several decades late, but it is coming about in ways and places that too few expected and too many are unwilling to acknowledge.

  15. Both sides have been increasingly guilty of trying to do end runs around the Constitution and the rule of law. They’re just trying to do different things in doing so.

  16. The government is not your friend. It’s a violent piece of shit who occasionally paves a road.

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