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

Notes

243 Notes Acknowledgments 1. Randal C. Archibold, Wait Ends for Father and Son Exiled by F.B.I. Terror Inquiry, N.Y. Times, Oct. 2, 2006, at A10. 2. International Travel and the Constitution, 56 UCLA L. Rev. 271–350 (2008). 3. The Extraordinary Mrs. Shipley: How the United States Controlled International Travel before the Age of Terrorism, 43 Conn. L. Rev. 819–88 (2011). Introduction 1. Olmstead v. United States, 277 U.S. 438, 572–73 (1928) (Brandeis, J., dissenting ). 2. Author’s interview with Timothy J. Healy, Dec. 4, 2009, FBI Headquarters. 3. Prepared Statement of Richard A. Falkenrath, Deputy Commissioner for Counterterrorism , New York City Police Department, before the Committee on Homeland Security and Government Affairs, U.S. Senate, Sept. 12, 2006, at 22. 4. Author’s interview with Michael P. Jackson, Arlington, Virginia, Mar. 14, 2011 (Author: “What keeps [watchlists] cabined in to air travel? Jackson: Nothing. It shouldn’t be. It shouldn’t be restricted to air travel”). 5. Memorandum for the Record, 9/11 Commission interview with Claudio Manno, Oct. 1, 2003, at 6 & 8. Author’s interview with Claudio Manno, Acting Assistant Administrator for Security and Hazardous Materials, FAA, Washington, D.C., October 20, 2009. Memorandum for the Record, 9/11 Commission interview with Lee Longmire, Oct. 28, 2003, at 5 & 6. Longmire had held operational and policy posts at FAA since 1980. When interviewed, he was Assistant Administrator for Operations Policy at TSA. 6. Statement of Timothy J. Healy, Director, Terrorist Screening Center, Testimony before the Senate Homeland Security and Governmental Affairs Committee, Dec. 9, 2009 (emphasis added). 7. Jamie Tarabay, The No-Fly List: FBI Says It’s Smaller Than You Think, National Public Radio (Jan. 26, 2011), http://www.npr.org/2011/01/26/133187841/the-nofly -list-fbi-says-its-smaller-than-you-think. 8. Eileen Sullivan, AP Exclusive: US No-Fly list doubles in 1 year, Associated Press, 244 ◆ Notes to Pages 3–5 Feb. 2, 2012, available at: http://news.findlaw.com/apnews/e4d8073c24804c96b 889d05eb4a12942. The AP story reveals a common problem with news reports about terrorist watchlists: conflation of statistics about names (which could include aliases and multiple spellings of a name for a single person) and statistics about individual people. 9. U.S. Department of Justice Office of the Inspector General, A Review of the FBI’s Investigations of Certain Domestic Advocacy Groups 188 (Sept. 2010) (“This practice did not violate the broad definitions of domestic terrorism in federal law, the Attorney General’s Guidelines, and FBI policies. However, this practice relied upon potential crimes that may not commonly be considered as “terrorism” (such as trespassing or vandalism) and that could alternatively have been classified differently. . . . [P]ersons who are subjects of domestic terrorism investigations are normally placed on watchlists, and their travels and interactions with law enforcement may be tracked.”). 10. Jack Goldsmith, The Terror Presidency: Law and Judgment inside the Bush Administration 71–72 (2007). 11. Helen Jung, Case of Tigard man, grounded by no-fly list, offers glimpse into secretive airport security screening, The Oregonian, Apr. 13, 2012, at A1. Available at: http://blog.oregonlive.com/travel_impact/print.html?entry=/2012/04/case_of_ti gard_man_grounded_by.html. 12. Publ. L. No. 108-458, § 4012(a), 118 Stat. 3638, 3714–18 (2004) (codified at 49 U.S.C. § 44903(j)(2)(C)). See also Advance Electronic Transmission of Passenger and Crew Member Manifests for Commercial Aircraft and Vessels, 72 FED. REG. 48,320 (Aug. 23, 2007) (codified Feb. 19, 2008, at 19 C.F.R. pts. 4 and 122). 13. Government Accountability Office, Aviation Security: TSA Has Completed Key Activities Associated with Implementing Secure Flight, but Additional Actions Are Needed to Mitigate Risks (GAO-09-292) 4 (May 2009). 14. DHS Press Release, DHS Achieves Major Aviation Security Milestone One Month Ahead of Schedule, Nov. 30, 2010 (http://www.dhs.gov/ynews/releases/ pr_1291142559247.shtm). 15. In fact, the USA PATRIOT Act prohibits states from issuing such a “hazmat” license to anyone unless the federal government determines that the individual does not pose a security risk. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, Pub. L. No. 107–56, § 1012, 115 Stat. 272 (Oct. 26, 2001) (codified at 49 U.S.C.§ 5103a). As a result, the Transportation Security Administration (TSA)—the federal agency that uses the No Fly List—also runs the Hazardous Materials Endorsement Threat Assessment Program. That program evaluates applicants according to...