Flight attendants union head Sara Nelson called for DC protestors to be banned from flying and now the House Homeland Security Committee, under Chairman Bennie Thompson (D-MS) is calling on the TSA and FBI to add protestors to the No Fly List.

After calls from flight attendants to ban insurrectionists from flights out of DC, the House Homeland Security Committee is now asking the FBI and TSA to add perpetrators to the no-fly list. pic.twitter.com/dvWcRiOVpD

— Sam Mintz (@samjmintz) January 7, 2021

I believe the actions of protestors that turned violent and stormed the Capitol were abhorrent. However placing people who were there, or even who entered the Capitol, on the No Fly List is an affront to civil liberties and democracy.

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).

We Should Follow Due Process Of Law

There were substantial arrests made after Wednesday’s events. This will follow due process of law – which is precisely the principle that is important to defend here, which some of the protestors were subverting 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.

Expanding The No Fly List Will Be Used In Dangerous Ways

Individual airlines are free to choose to ban passengers. 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 unpopular people (in many cases criminals) 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. Any new power should be one you’re comfortable with the next President Trump having and using.

Taking away the freedom to travel from people whose speech you dislike is a dangerous precedent. Those who have committed crimes should be charged, tried, and punished under existing law. Americans shouldn’t have freedoms taken from them when they haven’t even been charged with a crime.