Do the ACLU and privacy activists share the blame for Christmas Day attack?

posted at 9:30 am on December 29, 2009 by Ed Morrissey

The impulse of the Obama administration since the Christmas Day terrorist attack on Northwest 253 has so far been to blame the Bush administration for setting rules on the additions of terrorist suspects to the no-fly list from the TIDE database.  Never mind, for the moment, that the Obama administration has been in office for almost a full year and 25% of its term in office, and that they promised to “hit the ground running,” not to take a year to get to speed on national security.  Those rules didn’t just get generated by the previous White House in a vacuum, or arbitrarily, as Gabriel Schoenfeld reminds readers of the Los Angeles Times:

The Bush administration was subjected to withering criticism for the way it managed the no-fly list. The American Civil Liberties Union put the system on its own list of the “Top Ten Abuses of Power Since 9/11,” asserting that “the uncontroversial contention that Osama bin Laden and a handful of other known terrorists should not be allowed on an aircraft” has been exploited “to create a monster.” In one of several lawsuits the group has filed involving terrorist lists, the ACLU alleged that they “violate airline passengers’ constitutional right to freedom from unreasonable search and seizure and to due process of law.”

Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, has been one among a chorus of voices that accused the former administration of being far too sweeping, placing “infants, nuns and even members of Congress” on terrorist watch lists. The writer Naomi Wolf has called travel restrictions such as the no-fly list, “a classic part of the fascist playbook” akin to the depredations of Nazi Germany, where “families fleeing internment were traumatized by the uncertainties that they knew they faced at the borders.” This was hysteria directed against Bush counter-terrorism mechanisms that the Obama administration has left almost entirely unchanged.

The Department of Homeland Security has indeed received a high volume of complaints about airport screening by individuals attempting to travel. Yet only a minuscule 0.7% of the complaints stemmed from issues relating to the watch lists. And of that 0.7%, about 51% of the complaints led to the conclusion that the individual in question was appropriately on the watch list. Whatever problems exist, the system is not outrageously over-inclusive. Indeed, if anything, the opposite is the case.

We will never know whether fierce criticism from the left had any direct effect on the processing of Abdulmutallab’s file, but the political environment is important to consider going forward. The officials managing the watch lists are not eager to be hauled before a congressional committee if they blunder and bar innocent people from getting on flights. But they are also acutely aware of the potential price tag of being under-inclusive.

Generally speaking, when talking about the tension between government and civil libertarians, I tend to side more with the latter in most cases.  That may be more true now than ever, when the federal government seeks breathtaking advances in power over people’s lives through greater control of the health-care system and energy production.  Since Democrats took over Congress and the White House, more and more conservatives have discovered their inner libertarians — and that civil-libertarian impulse should be encouraged.

However, this is one area in which Schoenfeld is correct to call the no-fly list critics “extremist.”  The danger of terrorist attacks on our air travel is all too real, as 9/11 proved and the latest attempt corroborates.  The main constitutional role of the federal government is to secure the nation against attack, and no one doubts that air travel with its interstate and international nature belongs in their jurisdiction for law enforcement and counterterrorism.  They have the responsibility to make sure we know who represents a danger to Americans traveling by air and to prevent them from getting onto airplanes before they attack.  Once the attack takes place, it’s generally too late to do anything about it; we just got lucky last week.

Do mistakes get made?  Of course, but it’s time we stopped making the perfect the enemy of the good.  As long as we have some due process in place to rectify those mistakes and we make that process as transparent as it can be, then we should understand that it’s better to miss a flight than to allow an Umar Abdulmutallab onto an inbound flight from Amsterdam.  We shouldn’t insist that we get more derogatory information before canceling a visa or moving someone to the no-fly list when his own father — a prominent Nigerian politician and banker — tells us that his son has become a radical Islamist jihadist who wants to attack the US.

If Janet Napolitano wants to blame the rules surrounding the no-fly listings for the attack, then she should blame the people who forced those rules into place — many of whom were the people who supported her boss in the last election.


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