In mid-April, after an eight-year, “Kafkaesque” ordeal implicating its vast architecture of official secrecy and bureaucratic intransigence, the US government finally, if grudgingly, informed Dr Rahinah Ibrahim that she was no longer on the No Fly List. Dr Ibrahim, a Malaysian architecture professor, had been placed on the list as a result of a clerical error, a fact that the Department of Justice fought vigorously in court to cover up, until a federal judge ordered it to come clean. This marks an important victory for transparency in the realm of US watch lists, which operate in near-total secrecy, even when mistakes are made.
But a major part of the story about the government’s misuse of its No Fly List has yet to be told. The government is depriving people in the US of their freedom to travel, without any notice or hearing, not only by mistake, as in Dr Ibrahim’s case, but also deliberately, in order to coerce them to work as informants for the Federal Bureau of Investigation.
Our two organisations, CLEAR and the Center for Constitutional Rights, sued US federal agents, officials and agencies last week on behalf of four American Muslim men with no criminal records who were approached by the FBI in an effort to recruit them as informants. One of them was asked if he would go to online Islamic forums and “act extremist,” while another was asked whether he would travel to Pakistan for the FBI. And the agents don’t beat around the bush. As one agent told our client who had turned to his elected representatives for assistance: “The Congressmen can’t do shit for you; we’re the only ones who can take you off the list.”
There can be no place for blackmail by law enforcement in an open and democratic society.
Because these plaintiffs exercised their constitutional right to refuse to spy on innocent members of their own communities, our lawsuit alleges, the FBI tried to coerce them into obedience by placing or keeping them on its shadowy watch list. As a result, the plaintiffs have been unable to visit wives, children, sick parents, and elderly grandparents overseas for years. They have missed funerals. They have lost jobs, been stigmatised and isolated within their communities, and suffered severe financial and emotional distress.
One of the plaintiffs, Awais Sajjad, bemoaned this dilemma. “I do not want to become an informant, but the government says I must in order to be taken off the No Fly List,” Mr Sajjad told us recently. “How can the government tell me that the only way I can see my family again is if I turn my back on my community?”
The No Fly List is supposed to be about ensuring aviation safety but the FBI is using it to force innocent people like Mr Sajjad to become informants. The practice borders on extortion, but it should come as no surprise when the government is allowed to compile secret watch lists without giving people any meaningful notice or an opportunity to see or challenge the asserted reasons for their placement. The lawsuit alleges that this lack of transparency and accountability makes the list ripe for abuse by FBI agents who often face pressure from their superiors to recruit human sources.
A skeptic might ask: what if the FBI can prove these men posed a real threat to civil aviation? If so, that only begs the question of why they were told they could fly again if they agreed to work as informants for the FBI – or how, if they were truly deemed so dangerous, the FBI could risk enlisting them as informants.
As of 2013, the No Fly List contained over 21,000 names and it is worth noting that a 2007 audit found that more than half of the 71,000 names then on the list were wrongly included. It is an open question how many people today are on the list purely by mistake, like Dr Ibrahim, and how many, like Mr Sajjad, have been listed improperly because they refuse to spy on their communities.
We believe that the court will vindicate these plaintiffs and strike down this unlawful use of the No Fly List. However, the government can still rectify the matter on its own by discontinuing this misuse of its watch-listing authority, by confirming that the plaintiffs have been removed from the No Fly List, and by vigorously investigating how they came to be placed on the list in the first instance. There can be no place for blackmail by law enforcement in an open and democratic society.
Professor Ramzi Kassem supervises the CLEAR project (Creating Law Enforcement Accountability and Responsibility) at CUNY School of Law.
Baher Azmy is the Legal Director of the Center for Constitutional Rights.