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Grounding the No-Fly List

Rights groups seek to block 'illegitimate' security plan.

By Tom Barrett 18 Jun 2007 |

Tom Barrett is a contributing editor to The Tyee. Read his previous stories here.

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'Useless security theatre'?

Starting Monday, anyone boarding a commercial airliner in Canada will be screened against a home-grown no-fly list. But the B.C. Civil Liberties Association is still fighting to kill the list.

Calling the process by which the list was enacted "illegitimate," the association is calling on MPs who belong to the Commons public safety committee to hold public hearings into the list.

The BCCLA is part of a coalition of 10 groups that is calling for the immediate cancellation of the no-fly list.

The list "doesn't do a darn thing for security," BCCLA policy director Micheal Vonn told The Tyee.

"It has terrible implications for rights and it's massively subject to abuse.

"And the other thing that's kind of tied into this is that there has been no democratic process. We say that the process is illegitimate."

Known as Passenger Protect, the federal plan establishes a secret list of persons who are believed to represent an "immediate threat" to airline security.

All passengers in Canada will be automatically screened against the list before they are issued a boarding pass. In the event of a possible match, airlines must immediately contact Transport Canada, which will decide whether the passenger can fly.

'Back door'

The federal cabinet created the list by passing regulations. Unlike legislation, regulations are not debated or voted on by Parliament. And while regulations are supposed to fill in the details on specific pieces of legislation, the BCCLA argues that there is nothing in the relevant law that specifically authorizes a no-fly list.

"No one who passed this legislation would have any reason to believe that they were putting in a no-fly list," said Vonn. "The words 'no fly' have never been uttered in a parliamentary debate on the issue of whether or not we should do this."

The government brought in the list "through the back door," said Vonn. "Clearly this is a national security measure. It should go to the public safety committee."

Although no hearings have ever been held, the public safety committee has been briefed on the list by bureaucrats and several members have been sharply critical of its provisions.

The no-fly list has been criticized by opposition politicians and by the federal privacy commissioner. Earlier this week, Air Canada's head of security warned that the list could create "unruly" situations when passengers are told they cannot fly.

Yves Duguay said the airline supports the idea of a no-fly list, but is worried about the safety of front-line staff.

"That's a point we've been making for two years, the employee security issue," Vonn said.

The BCCLA is also hoping to be given permission to make a public submission to an obscure parliamentary committee that reviews federal regulations. Vonn said the association hopes to hear in the fall whether the Standing Joint Committee for the Scrutiny of Regulations will grant it permission to argue publicly against the no-fly list.

Made up of senators and MPs, the scrutiny committee reviews new regulations to ensure the government has the authority to make them and that they comply with existing laws, including the Charter of Rights and Freedoms.

'Kafka nightmare'

The BCCLA has opposed the no-fly list since plans to implement it were first made public. The group has called the scheme a "useless piece of security theatre" that "may represent a foothold for an electronic infrastructure for unprecedented traveller surveillance."

The association argues that the U.S. no-fly list has had a "devastating impact on thousands of ordinary citizens who have been flagged by the system mistakenly or because they have a name that sounds like a name on the list."

The U.S. no-fly list, which was created in the wake of 9-11, has apparently grown to half a million names, ABC News reports.

"Privacy and civil liberties advocates say the list is growing uncontrollably, threatening its usefulness in the war on terror," ABC reported last week.

With that many names, it's inevitable that confusion will set in. Because the list contains the name T. Kennedy, U.S. Senator Ted Kennedy was stopped and questioned five times at U.S. airports by security staff. It took Kennedy more than three weeks to get his name off the list.

The U.S. no-fly system "can't tell the difference between famous U.S. senators and actual terrorists," the BCCLA has argued.

Thousands of ordinary Americans "are now unable to board an airplane or are subject to highly intrusive questioning and searching before being allowed on a plane," the BCCLA says.

"And like a Kafka nightmare, they can't find out how they got on the list and can't get themselves off the list."

Two lists

Americans aren't the only ones who have run into troubles with the U.S. no-fly list. The Canadian Press has reported that Canadian airlines already use the U.S. list for domestic flights and that "dozens of Canadians have formally complained about being delayed at airports because their name -- or at least one that matches theirs -- turned up on the U.S. no-fly roster, or possibly another list that singles out passengers for secondary screening."

And, reports CP, Canadian airlines intend to keep using the U.S. list once the Canadian list goes into effect -- even though the federal government has said they should not be using the U.S. list.

Transport Canada says persons on the Canadian list will include:

Photo ID

As of Monday, everyone travelling by air within Canada who appears to be 12 or older must present one piece of government-issued photo ID -- or two pieces of government ID without a photo -- showing their name, date of birth and gender.

The federal government has said it will "take steps to minimize the risk" of mistakes through several procedures:

"The government, not the airline, will make the final decision on whether to deny boarding to an individual who is a match with the list," states Transport Canada.

A passenger who is mistakenly barred from flying can appeal to a Transport Canada "Office of Reconsideration."

To complain to the office, known as the OOR, a person must provide a notarized document that proves that they are who they say they are.

After reviewing the case, the OOR will recommend to the minister of transport whether the government should consider taking the person's name off the list.

"The OOR process will take approximately 30 working days, and the individual will be informed of the decision," states Transport Canada. "Should the individual not be satisfied with the decision of the Minister, they will still have the option of pursuing other legal avenues to challenge the decision, such as the Federal Court."

Privacy concerns

Despite the complaints of civil libertarians, the government says the Canadian no-fly list will comply with both the Charter and privacy laws.

However, Privacy Commissioner Jennifer Stoddart isn't happy.

Stoddart was highly critical of the home-grown no-fly list when it was first announced and a spokeswoman for her office recently told CanWest News that the commissioner's views "have not drastically changed."

When the no-fly list was first proposed, Stoddart sent Transport Canada a list of 24 questions that outlined her concerns.

Stoddart's first question was:

"What studies, if any, has the department carried out to demonstrate that advance passenger information will be useful in identifying high-risk travelers?"

The government's answer:

"The Passenger Protect program proposes to use a watchlist to prevent specified individuals from boarding flights based on practical global experience and risk assessment rather than specific studies."

Critics say this means that the government has no proof no-fly lists work.

The coalition of groups calling for the immediate cancellation of the no-fly list includes the BCCLA, the Canadian Arab Foundation, the Canadian Council for Refugees, the Canadian Labour Congress, the Canadian Race Relations Foundation, the Centre for Research Action in Race Relations, the Coalition of Arab Canadian Professionals and Community Associations, the Chinese Canadian National Council, the International Civil Liberties Monitoring Group and the National Anti-Racism Council of Canada.

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