9/11 Commission recommends "Targeting travel"

Back in April, the USA Department of Homeland Security announced plans for a Data Integrity, Privacy, and Interoperability Advisory Committee . I applied, naturally, and this month got a letter from the DHS Privacy Office saying that, “We anticipate that recommendations for consideration will be submitted to the Office of the Secretary [of Homeland Security] in August 2004. Appointments are expected soon thereafter.”

It will be interesting to see whether this committee is appointed in time to play a meaningful role in reviewing possible responses to the report of the National Commission on Terrorist Attacks Upon the United States , especially its recommendations .

In Section 12.4 of the report, “Protect Against and Prepare for Terrorist Attacks”, the first recommendation of the commission is for “targeting travel” through expansion of “travel intelligence collection and analysis.”

The report focuses on mandatory identification and tracking of travelers, and on the denial of transportation: “What information is an individual required to present and in what form? [is] a fundamental problem.” [emphasis in original]

Under current practices, air carriers enforce government orders to stop certain known and suspected terrorists from boarding commercial flights and to apply secondary screening procedures to others.The no-fly and “automatic selectee” lists include only those individuals who the U.S. government believes pose a direct threat of attacking aviation….

Unfortunately, the “beliefs” by the government may be entirely unfounded: the only way to determine whether individuals proposed to be subjected to travel sanctions actually “pose a direct threat of attacking aviation” is to present the evidence, if any, supporting that allegation to a neutral judge, in an adversary proceeding in which the object of the proposed injunction can present evidence and arguments to the contrary.

That’s what happens every day when allegations are made, typically in stalking and domestic abuse cases, that particular people are so demonstrably likely to injure others as to warrant their being forbidden by the government from travelling on particular public rights of way (e.g. the street adjoining a provably likely victim’s house) or other public places.

That system isn’t perfect — people subject to these sorts of injunctions (“restraining orders”) nonetheless kill far more people than air terrorists. But it’s bizarre that the 9/111 Commission and other advocates of “no-fly lists” fail even to mention, much less make any attempt to use, the existing legal mechanisms for accomplishing their professed goals:

Recommendation: Improved use of “no-fly” and “automatic
selectee” lists should not be delayed while the argument about a successor to CAPPS continues. This screening function should … utilize the larger set of watchlists maintained by the federal government. Air carriers should be required to supply the information needed to test and implement this new system.

There are numerous contradictions in the 9/11 Commission’s limited recommendations on privacy and civil liberties:

Recommendation: The burden of proof for retaining a particular governmental power should be on the executive, to explain (a) that the power actually materially enhances security and (b) that there is adequate supervision of the executive’s use of the powers to ensure protection of civil liberties. If the power is granted, there must be adequate guidelines and oversight to properly confine its use.

With respect to the various proposals formerly included in CAPPS-II, including the “no-fly lists” and compulsory identifcation of travellers, that burden of proof has not been met, as auditors from the GAO have found.

While the commission’s recommendation is for oversight and “supervision of the executive”, the only suggestion for implementation in its report is an empty one for “oversight” by the exeutive of itself, and subject to its authority: “a board within the executive” — effectively nothing more than a plea for executive self-restraint, not supervision. What’s needed — and, in our Constitutional system, required — is independent oversight by the judiciary.

The report also fails to consider — either in its recommendations or elsewhere — such questions as the Constitutionality (under the First Amendment right of the people to assemble) of compelling travellers, without a search warrant or particularized suspicion of a crime, to carry and display credentials or evidence of identity; ordering common carriers (legally obligated to transport all qualified passengers paying the fare specified in their tariff) to refuse to transport passengers on “no-fly lists”; or placing people on those lists (and thus subjecting them to restrictions on the activities such as assembly specifically protected by the First Amendment) without due process, an adversary hearing, and a court order.

Those questions should be at the top of the agenda of the DHS Privacy Advisory Committee — if it is appointed in time to consider them before action is taken without its input, and if the DHS (to which it will be, after all, only an advisory body), actually seeks its opinion on these issues critical to our freedom.