Apr 10, 2007 9:20 PM

Professor: Bashing Bush Got Me on Watch List; Suggests NSA Might Have Taken Him Off

On Monday, Professor Mark Graber, a contributor to the Balkin legal blog, posted a first person account from Professor Walter F. Murphy, a distinguished emeritus Princeton professor of Constitutional law, who was initially denied a boarding pass when trying to fly in March and was told by an airline employee that he was likely on a Transportation Security Administration watch list due to having criticized the administration. I questioned the conclusion that he was actually on a list and then spoke with both American Airlines and the TSA.

In an interview Tuesday, Professor Murphy discusses what happened, his anger at being told that an Administration headed by draft avoiders considers him a threat, and the possibility that he was quickly removed from the watch list because the NSA overheard his phone calls complaining about his situation.

Murphy flew from his home in Albuquerque, New Mexico on March 1 to start a trip to Princeton, New Jersey, but when he tried to check-in curbside, he was told he couldn't.

When I asked the curbside attendant why, he said, "You cant have a boarding pass." I had tried to do this online but thought I must have hit the wrong key or something.
"You are on the terrorist watch list so you have to go inside and talk to a clerk," he said.
The airline clerk was very polite, and I gave him my Marine I.D., and he looked at that and said, "Let me see what I can do. Do you mind if I take this to the TSA agent."
One of them, I don't remember which one, asked me, "Have you been in any peace marches? We ban a lot of people from flying for that." I said "No, but I did give a speech criticizing George Bush," and he said, "That will do it."
10 minutes later, which felt like ten years, he came back and I was given a boarding pass.
One of the two said they [TSA] will ransack my luggage. I have no problem with people going through the luggage; I have to be on that plane too. I don't like all the security but I know it is necessary.

Being told he was on a government watch list infuriated Murphy, and while on his trip, he told many people about it in conversation, but waited more than a month to publicize it.

I waited to go public until I could chuckle at the irony because I was furious and I didn't want to explode.
I'm outraged, When my war came up I didn't turn away. I went to war [ed. note: the Korean War] and was wounded and won the Bronze Star and to be accused of being disloyal by people who artfully dodged fighting their generation's war…
I can respect conscientious dissenters to the Vietnam War, but neither Bush nor Cheney though the war was unjust, I don't know how to describe the feeling. Kafka would have loved this scenario.

Professor Murphy said he initially was skeptical he was deliberately put on a list, but then starting hearing from others and remembering other conversations.

When I gave a speech at Princeton criticizing the President [on September 19,2006], the speech was entitled "Is the Constitution Dead or Merely Sleeping." After the talk a judge came up and congratulated me and said "I liked the talk," -- I got a standing ovation, which didn't surprise me since it was at Princeton --, and he said, "It took a great deal of courage." I said, "What do you mean? Who can do anything to me?" And he said, "But these people will find a way to punish you." I just laughed, but evidently he knew something I didn't know.
[Murphy's speech used James Madison's definition of tyranny as the situation when one branch or individual has full power to make decision for the nation and went over Bush's claims that he was not bound by Congressional statutes that must get a warrant for wiretapping. He also compared Bush's vision of executive authority to some of the writings of Carl Schmitt, a German philosopher who was a Nazi wannabe who penned a political justification for dictatorship, including the need for a single strong decider.]
I did not call Bush a Nazi. What I do claim is a remarkable similarity between his claims to presidential power and Schmitt's philosophy. I did not advocate assassination or even impeachment -- although impeachment is sounding good these days.

When Murphy flew back to Albuquerque, he had no problem getting a ticket, but the airline couldn't find his luggage when he landed. The fact he was not singled out again suggests the professor may not be on a list.

I flew back without having trouble getting a boarding pass. But when I was in Princeton, I had breakfast with former student -- a Republican congressman, and called a number of friends in my academic life, and the NSA monitors a lot of phone calls, especially cell phone calls, so I tried to use the words that might trip their computers like starting calls by saying, "I'm on the terrorist watch list" and "I've been criticizing George Bush" and if indeed these things are monitored, maybe they heard this, I don't know.
When I got back to Albuquerque, the airline said my luggage was lost. it was delivered later that night, sometime after midnight. I don't know when. I left a note on the door telling them just leave it. It arrived some time overnight and I found nothing missing. That could be a coincidence; airlines are good at losing luggage.

No one in the government told Murphy he was on a list or why – instead that was an airline employee who likely doesn't know why anyone is on a list.

I share your skepticism, and then the more I thought about it, the less sure I was that it was a coincidence. My initial reaction was maybe I was caught by an IRA name like mine, but then too many things fell into place.
My first thought was that this is just coincidence, but it fits but a small but neat pattern.
[The airline employees] are the people who have to deny boarding passes; they are the ones that administer it. They would be the people who have to do the dirty deed and sometimes the good one, as well.
Last night, during an interview with the local news the TV person reporter said that he had gotten in touch with the [Transportation Security Administration]. They say they don’t make up the list at all, but they did not deny this happened and wouldn't confirm or deny if I was on the list.

Murphy says he's heard from others put on the list and that it's similar to the outing of CIA operation Valerie Plame as political payback for her husband's criticisms of the Administration.

You have Valerie Plame being punished, and then I found at that two other people got put on the list. That seems to be more than clerical error. It begins to get a little hard to believe that it is clerical error, of course,
One of people who contacted me has been trying for many months to get off the list. One friend who called me said, "I got put on, too." He used to be fairly high-powered mover and shaker. "How did you get off?," I asked. "I'm partner in large law firm and I told my secretary to get me off," he said. "And I've been able to fly since."
I don't have a bright, highly paid legal secretary but, I'm in better shape than most Americans. At least when I scream, some people listen. No American citizen should be harassed for exercising their First Amendment rights.

Professor Murphy flies out Thursday for a conference in Texas, which will mark the first flight since his trip when he was told he was on a list. For those that are interested, the government watch list redress system for individuals whose names resemble the names of people actually on the list is here. There is no real procedure to clear your name if you are actually the person on the list.