This is an excellent analysis of some of the shortcomings of the no-fly list. He could have noted that some suspected of immediate plots and being monitored are not on the list because agencies do not want them to be alerted to that fact.
No Fly List, Other Spook Lists, and the Court of Star Chamber
The federal government’s No Fly list came into effect this morning. Ottawa’s list includes the name, date of birth, and gender of persons who supposedly could pose a threat to aviation safety, if they were to board a flight.
The No Fly list is being provided to all airlines that fly within Canada or in and out of Canada. The list is administered by Transport Canada. It has been compiled secretly, no one will say by whom, and no one will tell us how many names are on the list.
According to a Globe and Mail story, the Canadian No Fly list is expected to contain fewer than one thousand names. The Globe provides no source for this.
The United States has a similar No Fly list and one of the reasons Ottawa is drawing up its own list is to reassure Washington that we are doing all in our power to aid in the War on Terror. The American list, which contained as many as 70,000 names at one point, has been the cause of numerous “false positives”---people with the same name or similar names to those on the list---being barred from taking a flight. Among those caught in the net have been Senator Edward Kennedy, and Edmonton Conservative MP John Williams.
The way the Canadian system works is as follows. All passengers when they are at the airline counter to pick up their boarding passes will have their names checked against the No Fly list. If the passenger’s name is on the list, the airline employee hands the person a printed form that explains that he or she is on the No Fly list. Instructions are included about how to contact Transport Canada and how to appeal for the removal of one’s name from the list. Once the printout has been handed to the rejected passenger, the airline ceases to be involved.
You could be in Toronto, Tokyo, Cairo or Washington when this administrative fiat comes down on you. That’s tough. There’s no way to find out before you plan your trip whether you’re on the list. And just because you’ve been allowed to fly to Paris doesn’t mean that your name won’t be added to the list before your return flight home. You can, of course, take a passenger ship home if one is available. That is unless the security forces in the airport pick you up when they see that you haven’t been allowed to board your flight. That might not happen in Moncton, but I’d be less happy-go-lucky about this in Beijing or New York.
What about the rights of other passengers to board their flights in the most secure possible circumstances, you were about to ask? Don’t their rights trump those of the people whose names were put on the No Fly list for a very good reason? People with nothing to hide have nothing to fear, the old saying goes.
We’ll return to the rights issue, but first the security question. Any sensible person will agree that people are entitled to the best possible security protection when they board an aircraft. Few who have examined the matter would claim that Canada’s procedures provide the best possible security. The major hole in this country’s arrangements---from the time of the bombing of Air India in 1985 to the present---has been the failure to X Ray all baggage being loaded onto aircraft, and where there have been specific warnings, to use other measures as well, such as the use of sniffer dogs. This costs money. Let’s spend it.
The American experience with a No Fly list has done nothing useful except to provide jokes for late night comics. Almost no one thinks that future terrorists who board a plane will carry ID that will show up on the No Fly list.
This takes us back to the rights question.
The idea of drawing up a secret list and asking airlines to administer it is frightening. Foreign airlines and governments will get to know your name is on the list..
People on the list are presumed to pose a terror threat. If this is true they ought to be arrested and charged with a criminal offence. Instead, we’ve cooked up a new category of person----someone too innocent to be charged with an offensive, but too guilty to be allowed to board an aircraft.
Those who are on the list are not permitted to face those who have accused them in a transparent judicial proceeding.
Those on the No Fly list are not allowed to fly inside Canada. Worse still, they have had their right to travel internationally effectively removed. One of the rights guaranteed in the Canadian Constitution is that of mobility. Section 6: 1 reads: “Every citizen of Canada has the right to enter, remain in and leave Canada.”
This is not the first time that “spook lists” have been drawn up to harass citizens. I have had some personal experience with this.
In the late 1980s, when they were in their late seventies, my parents who had quit the Communist Party of Canada in 1956, were flying back to Toronto from Europe. Their flight was re-routed to Chicago due to bad weather. When the passengers deplaned in Chicago, my parents were taken aside and held by a U.S. government agent in a special holding room. When there was a flight available to Toronto, they were escorted onto the plane by an agent. Three decades after they had left a legal political party, they were still not allowed to enter the Land of the Free.
In the late 1960s and early 1970s, I was involved in the Waffle Movement in the NDP, an open and democratic political movement. In March 1971, the Security Service of the RCMP, in a brief on the Waffle group submitted to the Solicitor General of Canada Jean-Pierre Goyer, noted that:
The prime aim of the Waffle Group within the NDP is the establishment of an independent socialist Canada to be achieved through the existing structure of the New Democratic Party. The Waffle group hope to change the NDP from within and radicalize the NDP socialist policies. Considering the Waffle group as a whole, it is felt they will be a viable political force within the NDP.
Apart from their assessment of the political viability of the Waffle, the spooks got the story right. What matters is that the Waffle was neither the first nor the last political movement to be spied on by the security forces of the Canadian government. Trade unionists, student activists, socialists, anarchists, and Quebec sovereignists have had their phones bugged and their names entered onto spook lists.
The idea that we would allow the government of Canada to ask its thoroughly discredited security agencies to draw up a new spook list---the No Fly list---is appalling. On the list will undoubtedly be some who are being profiled because of their religion or their ethnicity. In addition, the list could contain the names of political activists, writers, odd balls or people not to the liking of the current government. The point is that we can’t find out what criteria have been used to draw up this list.
Truly worrying is the creation of categories of citizens whose rights are removed in the absence of any judicial process. By judicial proceeding, I mean a criminal trial, of course. But I also mean an administrative hearing in which a non-criminal complaint could be made. In both of these cases, the accused person would have the right to a defence.
The No Fly list is the kind of secret, arbitrary injustice that was meted out by the Stuart monarchs in England by the infamous Court of Star Chamber. The horrors committed by the Court of Star Chamber motivated England and later Canada to embrace the principle that no one should be secretly charged with an offence and that everyone has a right to hear the charges against him or her and to a defence in a transparent proceeding.
It won’t be long before outraged people complain about the ways the No Fly list has negatively affected them. Let’s hope that we are not serving up another Maher Arar to some arbitrary government when some hapless Canadian citizen tries to fly home from a less than civil libertarian foreign city.