"No-Fly" Doesn't Fly

By Elizabeth Newell

Government officials have not provided a sufficient reason for withholding records on travel watch lists, a federal judge said recently.

After reviewing documents that the FBI and the Transportation Security Administration classified as exempt from Freedom of Information Act requests, Charles Breyer, a U.S. district judge for the Northern District of California, ordered the agencies to reevaluate the exemptions. "In many instances, the government has not come close to meeting its burden, and, in some cases, has made frivolous claims of exemption," Breyer said in the order .

The criticism came as part of the Gordon, et al v. Federal Bureau of Investigation, et al case, in which two women and the American Civil Liberties Union are suing for the release of such information as the number of people barred from flying due to terrorism concerns, the procedure for putting people on the lists, and the process for removing names.

The plaintiffs, Rebecca Gordon and Janet Adams, were detained after trying to depart from San Francisco International Airport in August 2002. Gordon and Adams are peace activists and co-publishers of War Times, a newspaper critical of the Bush administration.

"We're concerned the system is flagging people who are simply protesters or civil rights activists such as the two individuals here," said Thomas Burke, a San Francisco attorney representing Gordon and Adams. "They are pacifists, they are not terrorists."

With the help of the ACLU, the two women filed FOIA requests in an attempt to find out how they came to be on the "no-fly" list. They accuse the FBI and the Transportation Security Administration of unlawfully withholding this information, while the agencies claim that existing records are exempt from release because they include sensitive security information.

The FBI and TSA declined to comment on pending litigation.

"The government . . . will not confirm if First Amendment-protected activity is a basis for being on the list or confirm that it's not," Burke said. "Of course if you reveal what is not a criteria, you're somehow revealing what the criteria is."

While the agencies insist that releasing the information would be a threat to national security, the judge said they have applied the exemption laws too broadly, excluding information such as aviation procedures, the names of senior transportation officials, and information publicly available through the media.

Breyer ordered the agencies to review the records again and judge "in good faith" what is exempt. They must then submit a sworn statement detailing why any documents have been withheld.

Rebecca Allison Gordon, Janet Amelia Adams and American Civil Liberties Union Foundation of Northern California v. FBI, Justice Department and TSA, U.S. District Court for the Northern District of California, San Francisco Division (C 03-01779 CRB), June 15.


Dwight Watson, known in Washington as the "Tractor Man," was sentenced to six years in prison Wednesday for parking his tractor in a pond in Constitution Gardens on the Mall and threatening to detonate a bomb.

Watson stayed on his tractor for 47 hours claiming that he had "organophosphate bombs." He said he was trying to start a revolution on behalf of tobacco farmers, who in his opinion have been ruined by two decades worth of negative policy changes. The standoff between Watson and law enforcement officials brought Washington traffic to a standstill for four days as police closed a ten-block area downtown near the offices of several federal agencies.

While the "bombs" turned out to be no more than cans of bug spray, a jury convicted Watson of making a false threat to detonate explosives and destroying federal property. The 15 months he has already spent in jail will count toward his sentence.

U.S. District Judge Thomas Penfield Jackson told Watson at his sentencing, "I have concluded you are a nice guy and you had a legitimate grievance. The sentence I will hand down to you today is intended to deter the next nice guy who thinks he has a legitimate complaint."

Jackson recommended that Watson serve either in a federal penitentiary in Goldsboro, N.C., near his family, or in Morgantown, W.Va.