Feds to pay ACLU $200,000 to settle no-fly list dispute

Wednesday, January 25, 2006

SAN FRANCISCO — Two federal agencies agreed yesterday to pay the American Civil Liberties Union $200,000 to settle a lawsuit brought to extract secret information about the no-fly list, which bars suspected terrorists from boarding commercial airlines.

In October 2004, documents that the Federal Bureau of Investigation and Transportation Security Administration provided in the lawsuit revealed the government has “two primary principles” but no “hard and fast” rules for deciding who gets put on the secret no-fly list.

The 301 pages of redacted documents, lodged in U.S. District Court in San Francisco in 2004, also said the secret list grew from 16 names the day of the Sept. 11 terror attacks to 594 by mid-December 2001. The list now is believed to carry thousands of names.

The documents were released as part of a lawsuit brought by the ACLU on behalf of Rebecca Gordon and Janet Adams, two San Francisco peace activists who co-publish the War Times, a nationally distributed newsletter critical of the Bush administration. The women were stopped while checking in for a San Francisco flight to Boston three years ago and detained by authorities until cleared for travel.

With the help of the ACLU, the two invoked the Freedom of Information Act to demand the FBI and other agencies explain how people get on and off watch lists.

U.S. District Judge Charles Breyer agreed yesterday to the settlement, in which the government would pay $200,000 in attorneys' fees. The ACLU decided to seek compensation, allowed under the FOIA, after it obtained all the information it believed it could get from the government.

“I trust this money will be used by the ACLU in post-September 11 litigation,” said Thomas Burke, an ACLU attorney.

The FBI said it was not immediately prepared to comment. The TSA did not immediately return messages.

The government at first balked at supplying any information to the ACLU. But Breyer, after privately reviewing secret government data, said the government was making “frivolous claims” for not being forthcoming.

One heavily redacted document disclosed, labeled the “GAO Survey of Federal Agencies' Use of 'Watch Lists' of Domestic and International Terrorists and Criminals,” says getting on a list is guided by two “primary” principles: One is whether various intelligence agencies view an individual as a “potential threat to U.S. civil aviation.” The other is whether the agency requesting someone be put on a list has provided enough information to identify the person to be flagged at the check-in counter.

An internal Dec. 5, 2002, Transportation Security Agency record about “false positives” shows that the agency received 30 calls per day from carriers about passengers who might have been wrongly flagged by a watch list.

And a confidential FBI document, dated Feb. 23, 2003, suggested that authorities might use religious profiling to target passengers for extra scrutiny.

The documents disclosed that people are regularly removed from lists if the FBI is convinced they are not a threat.

The case is Gordon v. FBI, 03-1779.

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