Watch lists and political dissent

Volokh, Eugene VOLOKH at
Tue Apr 10 22:49:04 PDT 2007

Here's some more on the subject, with factual assertions that seem
relevant.  By the way, a couple of sources, including this one, reason
that it's unlikely that Prof. Murphy was on a general watch list, since
he had no trouble flying back home, which suggests the initial screening
was quasi-random, not targeted at him in particular.  Any thoughts on
Tuesday, April 10, 2007 3:10 p.m. EDT 

Murphy's Law?
Left-wing blogs have been abuzz for a couple of days over a post by Mark
Graber <>
, a professor of law and government at the University of Maryland.
Graber prints a story he received from Walter F. Murphy
<> , a professor
emeritus of jurisprudence at Princeton who now lives in New Mexico,
about a bad experience Murphy had last month with airport security in
Albuquerque. Murphy alleges that the treatment he received was
politically motivated.

How credible is this claim? As luck would have it, Kip Hawley,
administrator of the Transportation Security Administration visited The
Wall Street Journal's office this morning, so we showed him a copy of
Graber's post. Here is Murphy's story, as reprinted by Graber, with
Hawley's explanation of what happened:

	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

According to Hawley, the only list a passenger might be on that would
prevent him from boarding a plane is the "no fly" list. Since Murphy did
ultimately get on the plane, he self-evidently was not on that list.
Hawley says it is possible that someone with the same name was on the
list; such an error befell Ted Kennedy
in 2004.

More likely, though, Murphy was a "selectee"--chosen for heightened
security by a process that is part random, part based on a variety of
factors, most of which are not publicly disclosed, but which are known
to include holding a one-way ticket and purchasing a ticket in cash. 

This has happened to us on numerous occasions. If you have ever had a
row of S's appear on your boarding pass, and been taken out of the main
line at the security checkpoint to have your bags searched, it has
happened to you as well. Selectees, Hawley explained to us, are not
allowed to check in at curbside but must go to the ticket counter, as in
Murphy's case.

Murphy's tale continues:

	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.

There are two problems with this. First, federal terrorist watch lists
are compiled not by political appointees but by career professionals at
the FBI's Terrorist Screening Center
<> , who,
according to Hawley, would balk at any effort to list people for
political reasons. Second, airline clerks have no way of knowing why a
passenger is a selectee or on the no-fly list; they know only that he
is. If the clerk actually said what Murphy claims he did, he was either
joking or expressing his own (ill-informed) political opinion.

As we said, Murphy was allowed on the plane:

	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: "I must
warn you, they=re [sic] 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

It is true, Hawley said, that TSA agents open the luggage of all
selectees (the word "ransack" seems another case of the clerk
editorializing). As for Murphy's suspicion that his lost bag on the
otherwise trouble-free return flight was taken as some sort of political
retaliation, Hawley says: "Give me a break."

Hawley added that if Murphy wishes to file a complaint about the
treatment he received, he can do so online through the Homeland Security
Department's Traveler Redress Inquiry Program
<> .

But if Murphy's account of the facts is accurate, what happened here was
out of the ordinary only inasmuch as the airline clerk--not a government
employee--made a sensational and untrue claim, a claim that Murphy
himself was eager to believe:

	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.

Murphy isn't the only one who was eager to believe it. Here are some
other comments:

*	Andrew Sullivan
he_pe.html> : "Just a heads up about what these people [the Bush
administration] are up to."
*	Josh Marshall
<> : "Given who
Professor Murphy is, I have no doubt this is an accurate account of his
particular experience. And it would seem that the people who actually
work with the list on a daily basis treat it as a given that the most
innocuous and obviously protected forms of criticism of the Bush
administration routinely get you on the watch list. That pretty much
confirms the truth of what most of us would probably have thought was a
harebrained conspiracy theory. Doesn't this deserve more scrutiny?"
*	Matt Stoller <> :
"This Murphy chap sounds like a smart fellow, but he also sounds like
someone who profoundly lacks empathy for the situation of others. And
those that are shocked by his situation, and at this point there
shouldn't be very many of us reading this blog that are, should open our
eyes and begin to wake up to what other cavalier violations of civil
rights go on around us every day."
*	Rod Dreher
y.html> : "If this account is true, and if it's true that just going to
a peace march puts you at risk for being on the terrorism 'no-fly' list,
I'd say Congress had damn well better hold hearings about this at once,
and find out just exactly what powers the federal government are
exercising against law-abiding citizens who happen to oppose
administration policy. We could be deep into Nixon territory."

Now, stop and think about this: We are expected to believe that Murphy
was "singled out" for his political views. But this credulous chorus of
concurrence proves there is nothing singular about those views. Andrew
Sullivan, Josh Marshall, Matt Stoller and Rod Dreher are among many
thousands upon thousands of people who have given speeches, written
articles or otherwise publicly declaimed against President Bush.

If the Bush administration were trying to stifle dissent, Murphy's
experience would be typical, and Bush's harshest critics would be
offering their own stories of airport-security woe--or they would be
silenced. Instead, they rush to affirm Murphy's interpretation of his
own experience. It is what they want to believe, even though it runs
counter to their own experience. ...

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