Not being a regular reader of legal blogs, this story came to my attention a few days late (via Sujatha).
A top Constitutional scholar from Princeton who gave a televised speech that slammed President George W. Bush’s executive overreach was recently told that he had been added to the Transportation Security Administration’s terrorist watch list. He shared his experience this weekend at the law blog Balkinization.
Walter F. Murphy, the McCormick Professor of Jurisprudence, Emeritus, at Princeton University, attempted to check his luggage at the curbside in Albuquerque before boarding a plane to Newark, New Jersey. Murphy was told he could not use the service.
"I was denied a boarding pass because I was on the Terrorist Watch list," he said.
When inquiring with a clerk why he was on the list, Murphy was asked if he had participated in any peace marches. "We ban a lot of people from flying because of that," a clerk said.
Murphy then explained that he had not 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."
The clerk responded, "That’ll do it."
The law blogs are all over this story. Speculations range from whether Professor Murphy is indeed on the No Fly list for his criticism of the Bush administration or whether some other bureaucratic considerations went into deciding his flying status. Some have expressed veiled skepticism of Murphy’s version of the incident and others have questioned how much an airlines clerk actually knows about the Byzantine calculations that go into the FBI’s decision to put such restrictions on an individual. The Bush administration’s mean hearted and vindictive attitude against real and perceived enemies are by now common knowledge. There is hardly any lie, character assassination or deception that the Bushies will not stoop to in order to thwart a critic. What is also well known is that their bark is quite a bit more vicious than the promised bite. Numerous illegal and unconstitutional schemes hatched by Bush-Cheney-Rove have come to light in the last few years but it is clear that they don’t always carry out their vengeful acts with much precision and care. More Keystone Kops with the blood thirst of Attila the Hun. My co-bloggers and I have been exchanging our own thoughts on this matter behind the scene via e-mail. I will reproduce their opinions here sequentially to show what we at A.B. think about Professor Murphy’s flight plight.
Dean: Lovely. I’m not sure what’s more disturbing: the revival of sedition as a feeble excuse for monitoring and control, or the more banal bureaucratic blandness of the "clerk’s" purported responses to Murphy: "That’ll do it." Really?
Anyway, the guy supported Alito. A little corruption, as Richard Sennett pointed out decades ago, isn’t perhaps such a bad thing, eh?
Joe: I don’t know that I really buy it; I think that Jack Balkin’s reaction, as usual, makes a lot of sense to me. Whether he was in fact added to a terrorist watch list, it seems unlikely that an airline clerk would be able to give a reliable account of why that is the case. It’s all over the legal blogosphere–Solove has a good post up at Concurring Opinions. It seems to me that bureaucratic incompetence is a more likely cause, even given the Bush Administration’s horrific record on, well, everything; and that the biggest problem is the lack of transparency and the lack of a procedure for getting one’s name removed if one is wrongfully on such a list.
But I do like Dean’s point about supporting Alito! Karma, gotta love it.
Dean: Thanks, Joe, for these links to Balkinization and CO, where good points are made, but also where discussion eventually descends into nanny-nanny sophistry. Balkin anticipates this trajectory when he begins his remarks with a hyper-academic positing of a gratuitous burden of proof: "I have no reason to believe that Professor Murphy has not accurately reported what airport personnel told him…" Of course, he has plenty of reasons to "believe" (or at least suspect) such might be the case: the information has been passed along via a blog (his own, I realize) from an intermediate source, he is hearing only one telling of the story, and it’s a lulu of a story, for starters. The Solove/Kerr debate at CO is remarkable, though, with Kerr defensively insisting he hasn’t missed a "larger issue." But he has, and so perhaps has Solove, whose remarks are otherwise sensible, if verbose.
The larger issue is, as you suggest, Joe, that this is very likely stupid bureaucracy manifesting itself on the front line, and…here’s the crux of the issue: this would be the case even outside a context of heightened security! Solove suggests that the security measures themselves account for the ineptitude, but I’m more inclined to believe that, at most, they merely compound it. This is why I qualified bureaucracy as "banal" in my first response.
I’m pleased, though, that we are, pace Tim O’Reilly, conducting a very civil discussion here, albeit one outside a public forum. (Well, now you are doing it inside it, Dean).
Sujatha weighed in with her own suspicions. She wondered if the original NO FLY list may have been compiled with the help of the MIA, the British spy agency. Could Professor Murphy have been confused with an IRA terrorist on the list?
Anything is possible but we’ll never know . Unless Congress starts cleaning house thoroughly, we will continue to pay a price with our civil rights, peace of mind and simple dignity long after this administration is gone because of the dirty little legacy of suspicion, vindictiveness and impetuous illegalities that it would leave behind in its wake.
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