TSA, FBI ordered to pay $200,000 in 'no fly' lawsuit

The federal government has agreed to pay $200,000 in attorneys' fees to the American Civil Liberties Union (ACLU) of Northern California to end a Freedom of Information and Privacy Act lawsuit that succeeded in making public, for the first time, hundreds of records about the government's secret "no fly" list used to screen airline passengers after Sept. 11, 2001. "This case helped shed light on the existence and creation of the 'no fly' list and other secret transportation watch lists, raising serious questions about its effectiveness and value," said Thomas R. Burke, a cooperating attorney with Davis Wright Tremaine LLP in San Francisco. The ACLU lawsuit was filed in April 2003 on behalf of itself and two Bay Area anti-war activists, Rebecca Gordon and Jan Adams, who were told by airline agents at San Francisco International Airport that their names appeared on a Federal Bureau of Investigation (FBI) no-fly list. The Transportation Security Administration (TSA) and the FBI agreed to pay the ACLU, who along with Gordon and Adams, sued when the government refused to make public information about its secret "no fly" watch list. The settlement was approved on Jan. 24 by US District Judge Charles Breyer of the Northern District of California in San Francisco. "As thousands of innocent travelers continue to be mistakenly linked to a name on the government's 'no fly' list, the public should be able to understand and meaningfully deliberate on whether the secret lists make us safer or are just a waste of government resources," added Burke. Frustrated by the government's stonewalling, Judge Breyer, in a June 15, 2004 order, criticized the federal government for its "frivolous claims of exemption," ordering the TSA and FBI to produce some 300 pages of previously withheld records detailing how the "no fly" list was created and implemented. The records revealed that the government watch list was implemented long before any coordinated policy was in place. The documents reflected, among other things, confusion, inter-agency squabbling and the admission that the criteria in placing names on the list are "necessarily subjective" and "not hard and fast rules." "We brought the lawsuit because we believe the public has a right to know about the 'no fly' list and other government watch lists," said Adams. "And we succeeded in doing so by making public hundreds of pages of documents that not only confirmed the existence of the 'no fly' list, but exposed many of the serious problems with the secret list." As a result of the lawsuit, the public learned how many individuals were on the "no fly" list. As of Sept. 11, 2001, only 16 individuals were identified as being banned from air travel; the following day, more than 400 were listed, and by December 2001 there were 594 names. As of December 2002, there were 1,000 names on the list, according to the records the government was ordered to release. The "no fly" list is now believed to include tens of thousands of names, according to the ACLU. In November of 2005, the TSA indicated that 30,000 people in the last year alone had contacted the agency because their names had been mistakenly matched to a name on the federal government's watch lists. The settlement was reached only days after the ACLU filed a lawsuit against the National Security Agency (NSA) seeking to stop a secret electronic surveillance program that allows the NSA to monitor and collect emails and phone calls from US citizens without court approval. The lawsuit was filed on behalf of a group of prominent journalists, scholars, attorneys and national non-profit organizations who frequently communicate by phone and email with people in the Middle East. The lawsuit, filed in US District Court in the Eastern District of Michigan, seeks a court order declaring that the spying is illegal and ordering its immediate and permanent halt. The ACLU has also filed Freedom of Information Act requests in 20 states on behalf of more than 150 organizations and individuals seeking information about FBI spying. In response, the government has released documents that reveal FBI monitoring and infiltration by the FBI and local law enforcement, targeting political, environmental, anti-war and faith-based groups.