Apr 9, 2007 5:15 PM

Government Secrecy Breeds Suspicion

Professor Balkin has a spot-on analysis of how secrecy surrounding watchlists makes it impossible to know what it means when a person gets stopped at the airport, how watchlists are managed, or whether some overzealous bureaucrats manage to put innocent dissenters on the list. Professor Murphy’s story suggests that both the press and Congress should […]

Professor Murphy's story suggests that both the press and Congress should look more closely into the way that the Administration and the nation's airlines work together to construct and implement the no-fly list. There are many ways that the list could be mismanaged, and many ways that bad information could travel through the system without being corrected. When this happens, the consequences are visited on innocent persons without any corresponding advantage to the security of our country. The presence of mistakes and snafus in the no-fly list undermine the program's ability to do what it was designed to do, which is to keep Americans safe.

Despite the recent announcement that Homeland Security is now working with the State Department for a government wide watchlist redress system, the only thing it does is allow people whose names are like people on the watchlist to get some sort of help. Maybe a letter they can carry in their back pocket. Maybe they get put on a whitelist somewhere. They are unlikely to be freed to check-in at home or at a kiosk.

What happens if you actually get put on a list, but it's based on some bad intelligence or a tip from your vengeful work rival? There's almost nothing you can do.

The courts won't even consider being banned from flying a punishment, because you are free to travel some other way. You might call the Terrorist Screening Center to get help, but they'll tell you to talk to the agency that nominated you. And they won't tell you who that is. You can file Privacy Act requests to find out what information the government has on you, but intelligence databases are exempt from those provisions so you can't get anything.

Two very smart men -- the database guru Jeff Jonas and the policy wonk Paul Rosenzweig came up with a very smart proposal in July 2005 to create a real redress system that would let people contest intelligence files about them, while still allowing the government to maintain some level of secrecy.

Rosenzweig is now a high-level Homeland Security official, but there's still no real redress system, though you can try this one if you want.