Mrs. Shipley's Ghost: The Right to Travel and Terrorist Watchlists

Chapter Nine: What Is to Be Done?

232 Chapter Nine What Is to Be Done? Where discretion is absolute, man has always suffered. At times it has been his property that has been invaded; at times, his privacy; at times, his liberty of movement; at times, his freedom of thought; at times, his life. Absolute discretion is a ruthless master. It is more destructive of freedom than any of man’s other inventions. —Justice William O. Douglas1 “What is to be done” asks both what is likely to be done next with the No Fly List as well as what should be done to stop its expansion. Terrorist watchlists have no natural stopping point. There is no intrinsic reason why anyone should create a list of people too dangerous to fly and not a list of people too dangerous to buy a gun, or transport hazardous materials, or anything else. The logic of making lists of people suspected of future danger presupposes no limit to their use. But such logic is upside down and unfamiliar to our traditions. It is our tradition—and our law—that a government official ’s firm belief that someone is dangerous is not enough to restrict that person’s freedom to do what is otherwise lawful. That person possesses the same rights as those fortunate enough not to have fallen under government suspicion. Ordinarily, that official’s belief in such future danger must be evaluated by a neutral magistrate when the state wants to restrict someone’s freedom to move from place to place. This book recommends return to that traditional view of the relationship between the state and the individual. “What is to be done” could also be read another way. One might ask what is to be done, not by the state, but by enemies of the United States. What is to be done to us by them? And what should be done to stop that threat? Terrorism is likely to continue for the foreseeable future; it may become even more threatening on an even more frightening scale. There are What Is to Be Done? ◆ 233 very good reasons for making watchlists and using them to find, track, and stop terrorists. No reasonable policymaker would choose to remain willfully ignorant about such people and their reasons for seeking access to guns, chemicals, or airplanes—technologies that can promote liberty and progress as much as destroy them. Surely it is not prudent to neuter the government agencies tasked with this investigative purpose. But beyond the collecting and sharing of information—crucial tasks of counterterrorism that can lawfully be done and should be done—what limit should be placed on how that information is routinely used? Where should those limits come from? Those limits are found in the Constitution. The No Fly List breaches those limits by violating the fundamental right to travel. As one legal scholar and counsel in the earliest cases opposing the No Fly List and its premises described the problem: “Some people are treated differently than others, implicating equality. Some people are forbidden to engage in otherwise lawful behavior, implicating freedom. The possibility of official error and oppression is magnified, implicating fairness.”2 Depending on the civic identity of the traveler and her itinerary, the Citizenship Clause, the Due Process Clause, and often their combination prohibit use of the No Fly List, as presently conceived, as a counterterrorism tool. Within the United States, all those whose travel the No Fly List arrests are victims of a constitutional violation of their right to due process of law. Citizens possess an additional constitutional guarantee. Ordinarily, the state cannot stop a citizen of the United States from leaving the country or returning home on the ground that the government dislikes the traveler or suspects her motive for travel.3 Our constitutional principles reject such a relationship between state and citizen. So long as the citizen’s actions are not treasonous, immediately dangerous, or contrary to some lawful obligation made to the state, a citizen’s travel (like a citizen’s speech) does not require the consent of the sovereign. It is no answer to suggest that Secure Flight—the program by which the Federal Government grants permission to the airline to print a traveler ’s boarding pass after vetting a purchased ticket against the No Fly List— arrests the travel of only a few, or merely obstructs one mode of transportation . The Government is not licensed to violate the Constitution so long as it keeps the numbers down.4 Nor is...