In the hoopla surrounding the closing days of the U.S. Supreme Court's term, it would be easy to overlook the decision by a federal judge in Oregon ordering the government to make it easier for travelers to challenge their inclusion on the no-fly list. At a time when sharply growing numbers of Americans tell pollsters that they are feeling less safe from terrorist attacks, the ruling provides a useful reminder of the limits on government power to assuage our fears.
Since its origins in the security directives issued by the Federal Aviation Administration long before the attacks on Sept. 11, 2001, the no-fly list has grown from fewer than a dozen names to several thousand. Now compiled by the FBI and administered by the Department of Homeland Security, the list has been a source of endless frustration and confusion for travelers not least because there is no way of discovering whether a name similar to yours might be on it but to show up at the airport.
A 2009 report by the Justice Department's inspector general concluded that the FBI's terrorist watch list from which the no-fly list is drawn is riddled with inaccuracies. The innocent are often ensnared. In perhaps the most famous incident, the late Sen. Edward Kennedy was denied a boarding pass five times in 2004, because of a similarity between his name and an alias that appeared on the list. Each time, airline officials overruled the ticket agents, and Kennedy was able to make his flight. But, as the senator pointed out at a subsequent hearing, most travelers wouldn't be able to reach anyone with the power to rule that a mistake had been made.
In last week's ruling in Latif v. Holder, District Judge Anna Brown held that the current system of review violates the due process rights of those who are included on the list. The plaintiffs, all of whom are U.S. citizens or permanent residents, and four of whom are military veterans, were caught up in a byzantine process under which an individual who thinks he shouldn't be on the list is free to file a complaint. When the review is complete, the complainant receives a letter telling him so but not what the resolution is or even if he's now free to fly. And because those included on the list are never told why they are on the list, there is no easy way to rebut whatever mistakes the file might contain.
Mysterious lists compiled for mysterious reasons based on mysterious facts: It all sounds very undemocratic and even un-American. But before concluding that the list itself is the problem, it's worth taking a moment to understand the entirely plausible theory behind it.
At least since Laurence R. Iannaccone's pioneering paper "The Market for Martyrs," it has been widely accepted among experts that the supply side of the terrorism market is all but impossible to control. There will always be those willing to die for their cause. Therefore terrorist attacks must be stopped, if at all, on the demand side. And whatever their other policy differences, an acceptance of this proposition has united the anti-terrorism strategies of both Barack Obama and George W. Bush.
The idea of attacking the demand side requires viewing terrorist groups as businesses that are trying to achieve particular goals. The model works even if one finds groups bent on nihilistic destruction, or doing what they believe God commands. To reduce demand, one makes the attainment of those goals more expensive.
One obvious way to raise the cost to the business is to kill the planners of terrorism missions. The object here is not so much to keep them from planning the next one (although that is a positive side effect) as to deter others from joining the business.
Another means of reducing demand is to harden particularly attractive targets, making them more difficult to attack. Typically this will involve adding layers of security. (Some theorists contend that hardening targets has the ironic effect of increasing the demand for suicide bombers, because the hardening of the target enhances the risk that an attacker will be captured and interrogated. A suicide bombing, although it costs the terrorism business a bomber, eliminates the risk of capture.)
The no-fly list belongs to yet another category: reducing demand by reducing the access of the terrorism business to the facilities it needs in order to conduct an attack.
Airplanes, for instance.
If one is seeking to eliminate attacks using aircraft, compiling a list of individuals not permitted to fly is entirely rational. Moreover, because of the enormous damage, including psychic damage, that even a single successful airplane terrorist attack might cause, it is rational to make the list over-inclusive rather than under-inclusive: One doesn't want to risk leaving people off. And, of course, as any disciple of the Nobel laureate Thomas Schelling would agree, it is also rational, indeed crucial, not to let those you are trying to keep off planes know what criteria you are using to decide who gets to fly.
It's easy to see, then, how the no-fly list became the secretive and error-strewn monstrosity that Judge Brown describes. There needn't be any malevolence on the government's part. Each choice along the way is entirely rational, given the goal of preventing future attacks.
Rational, however, isn't the same as right. The no-fly list may be a grim necessity of the times, but its design must be consistent with our values. One virtue of constitutional government at least when enforced by serious courts is the constant reminder that the government, in pursuing even the most desirable of ends, must choose its tools only from among those the Constitution provides.
Stephen L. Carter, a Bloomberg View columnist, is a professor of law at Yale University.