terrorist watch list

Sun Apr 8 15:29:32 PDT 2007

Even on seemingly benign assumptions, it strikes me that there's
probably something deeply irrational going on.  Let's assume that there
is some other Walter Murphy on the watch list.  It seems to me that
there are two possibilities, though I'd be interested in hearing others
on whether there might be more.  (a)  The other Walter Murphy is an
Irish-named terrorist associated with terrorist groups in Ireland.  Here
the question I'd want to ask is, When did members of such groups last
hijack airplanes (in Europe, the United States, or elsewhere)?  If, as I
suspect, the answer is, Quite a while ago, then the watch list isn't
something designed to avoid hijackings (which is what I would suspect
most people think it is for), but is a general law enforcement technique
for catching suspected terrorists.  But then, why is there *only* a
passenger watch list and not, for example, a list to be consulted
whenever someone is lawfully stopped for a traffic violation?  (Maybe
there is, but I haven't read anything about it.)  And, as a general law
enforcement technique, how does it compare to other uses of law
enforcement resources?

(b)  Perhaps non-Irish terrorist groups with a more extensive history of
hijacking use false names, like Walter Murphy, to get on airplanes.
Given the association list members have made between Irish names and
terrorism, though, such terrorist groups would have to be quite inept.
Why adopt a false Irish name rather than, for example, a false Italian
or German or ... name?

I happen to be willing to concede quite a bit to executive discretion in
devising general law enforcement strategies, including those dealing
with terrorism, but -- particularly in light of other information about
military surveillance of peace groups -- I'm inclined to think that the
construction of the watch list contained elements that were abuses of
discretion.

Mark Tushnet
William Nelson Cromwell Professor of Law
223 Areeda Hall
Harvard Law School
Cambridge, MA  02138
ph:  617-496-4451 (office); 202-374-9571 (mobile); 617-496-4866 (fax)
-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Sunday, April 08, 2007 4:39 PM
To: conlawprof at lists.ucla.edu
Subject: RE: terrorist watch list

	Surely putting someone on a terrorist watch list simply because
he's been in a peace march is outrageous.  So would a clerk's being
instructed to say so, if it weren't true -- deliberately spreading such
rumors would itself tend to deter people's speech.

	Still, I wonder whether this is indeed a real government policy,
or just a myth that the clerk picked up somewhere and was passing along
without much support.  Again, if it is really the policy, it's appalling
-- but I just wonder whether it is.

	Eugene

> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu 
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Jeffrey Segal
> Sent: Sunday, April 08, 2007 11:13 AM
> To: conlawprof at lists.ucla.edu
> Cc: wmurphy37 at comcast.net
> Subject: terrorist watch list
> 
> 
> I pass this story along, with permission, from Walter Murphy.
> 
> 
> Don't know if this missive is list-worthy or not.  Even tho' 
> I'm the person who was immediately affected,the problem does 
> pertain to basic constitutional issues with which all of us, 
> of whatever political persuasion, are concerned in our 
> teaching and scholarship.  What follows are excerpts for a 
> narrative I prepared for Sen Jeff Bingaman (D, NM).  If you 
> think the larger issues it raises are appropriate for the 
> list, please so distribute.  If not, then not.  As usual I 
> rely on your judgment.
> 
> 
> On 1 March 07, I was scheduled to fly on American Airlines to 
> Newark, NJ, to attend an academic conference at Princeton 
> University, designed to focus on my latest scholarly book, 
> Constitutional Democracy, published by Johns Hopkins 
> University Press this past Thanksgiving.
> 
> 
> When I tried to use the curb-side check in at the Sunport, I 
> was denied a boarding pass because I was on the Terrorist 
> Watch list.  I was instructed to go inside and talk to a 
> clerk.  At this point, I should note that I am not only the 
> McCormick Professor of Jurisprudence
> (emeritus) but also a retired Marine colonel.  I fought in 
> the Korean War as a young lieutenant, was wounded, and 
> decorated for heroism.  I remained a professional soldier for 
> more than five years and then accepted a commission as a 
> reserve office, serving for an additional 19 years.
> 
> I presented my credentials from the Marine Corps to a very 
> polite clerk for American Airlines.  One of the two people to 
> whom I talked asked a question and offered a frightening 
> comment:  Have you been in any peace marches?  We ban a lot 
> of people from flying because of that.  I explained that I 
> had not so marched but had, in September, 2006, given a 
> lecture at Princeton, televised and put on the Web, highly 
> critical of George Bush for his many violations of the 
> Constitution.  That'll do it, the man said.
> 
> 
> After carefully examining my credentials, the clerk asked if 
> he could take them to TSA officials.  I agreed.  He returned 
> about ten minutes later and said I could have a boarding 
> pass, but added: AI must warn you, they're going to ransack 
> your luggage.  On my return flight, I had no problem with 
> obtaining a boarding pass, but my luggage was lost.  Airlines 
> do lose a lot of luggage and this loss could have been a mere 
> coincidence.  In light of previous events, however, I'm a tad 
> skeptical.
> 
> I confess to having been furious that any American citizen 
> would be singled out for governmental harassment because he 
> or she criticized any elected official, Democrat or 
> Republican.  That harassment is, in and of itself, a flagrant 
> violation not only of the First Amendment but also of our 
> entire scheme of constitutional government.  This effort to 
> punish a critic states my lecture's argument far more 
> eloquently and forcefully than I ever could.  Further, that 
> an administration headed by two men who had had other 
> priorities than to risk their own lives when their turn to 
> fight for their country came up, should brand as a threat to 
> the United States a person who did not run away but stood up 
> and fought for his country and was wounded in battle, goes 
> beyond the outrageous.  Although less lethal, it is of the 
> same evil ilk as punishing Ambassador Joseph Wilson for 
> criticizing Bush's false claims by outing his wife, Valerie 
> Plaime, thereby putting at risk her life as well as the lives 
> of many people with whom she had had contact as an agent of 
> the CIA.  ...
> 
> I have a personal stake here, but so do all Americans who 
> take their political system seriously.  Thus I hope you and 
> your colleagues will take some positive action to bring the 
> Administration's conduct to the attention of a far larger, 
> and more influential, audience than I could hope to reach.  I 
> am ready to help in any such endeavor. ...
> 
> So there we are, as the Irish would say.  I wonder what would 
> have happened had I been a citizen of Arab descent.
> 
> 
> Peace,
> 
> W
> 
> 
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