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Leaked Guidelines for Placement on No-Fly List Show System Ripe for Abuse

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No threat to aviation security required to be barred from boarding plane


July 24, 2014, New York – Attorneys at the CLEAR project (Creating Law Enforcement Accountability & Responsibility) of CUNY Law School and the Center for Constitutional Rights issued the following statement today in response to the publication yesterday by The Intercept of a leaked copy of the National Counterterrorism Center’s Watchlisting Guidance, which sets forth (among other things) inclusion criteria, evidentiary standards and procedures for placing individuals on the No-Fly List:

As attorneys who represent individuals on the No-Fly List, we are dismayed to read the details of how the government places people on the List based on criteria that are hopelessly vague and require no showing of a threat to aviation security. It appears that the introductory disclaimer in the guidelines that “watchlisting is not an exact science” is a gross understatement.
The document reveals that the threshold for labeling someone a terrorist and barring them from flying indefinitely is shockingly low. It appears the only requirement is that, in a federal agent’s judgment, a listed person pose a ‘threat’ of engaging in terrorism – defined so broadly that it could readily include civil disobedience – anywhere in the world. That leaves our clients with the impossible task of proving that they will not somehow become terrorists in the future.
The criteria for placement on the broader terrorist watchlist, which grew by nearly half a million entries in 2013 alone, are even lower. Social media postings, including, presumably, posts to Facebook and Twitter, can apparently by themselves result in placement on a watchlist, as can “travel for no known lawful or legitimate purpose to a locus of terrorist activity”—perhaps including entire countries such as Pakistan or Afghanistan.
As the document confirms, it is “the general policy of the United States government to neither confirm nor deny” that someone is on the No Fly List. Nor does the government tell people on the List why they are there or give them a meaningful chance to dispute their placement. This lack of transparency and meaningful oversight, combined with the use of standards that we now know to be unacceptably low, makes the List ripe for the type of abuse that FBI agents inflicted on our clients in order to coerce them into becoming informants.

CCR and CLEAR represent four American Muslim men with no criminal records who were approached by the FBI in an effort to pressure them to serve as informants on their religious communities, spying on their friends and neighbors. Some of the men found themselves on the No Fly List after refusing to spy for the FBI and were then told by the FBI that they could get off the List if they agreed to become informants. Others were approached by the FBI shortly after finding themselves unable to fly and were told that they would be removed from the List if they consented to work for the FBI.

The Center for Constitutional Rights is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. Founded in 1966 by attorneys who represented civil rights movements in the South, CCR is a non-profit legal and educational organization committed to the creative use of law as a positive force for social change.