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Tuesday, September 27, 2005

When Nuns Can't Fly

Nun2_1Ryan Singel writes about a fascinating story for Wired.com of a nun trapped on an airline passenger screening watch list:

Sister Glenn Anne McPhee is a busy woman.

As the U.S. Conference of Catholic Bishops' secretary for education, Sister McPhee oversees Catholic education in the United States, from nursery school through post-graduate. Her job includes working with the Department of Education, speaking frequently at conferences and scrutinizing religious textbooks to clear them with the teachings of the church.

For nine months in 2003 and 2004, Sister McPhee also took on the task of clearing her name from the government's no-fly list, an endeavor that proved fruitless until she called on a higher power, the White House.

"I got to the point I could hardly go to the airport, because I couldn't anticipate what would happen and I couldn't do anything," she said in an interview with Wired News. "I missed key addresses I was to give. I finally got to the point where I always checked my bag, because after I got through the police clearance, then they would put me through special security where they wand you from head to foot all over. They would dump out everything in your bag, then roll it into a ball and hand it back to you." . . . .

McPhee’s tale is revealed in Freedom of Information Act documents obtained by Marcia Hofmann of the Electronic Privacy Information Center.  These documents will be released in full later this week, and apparently, they contain numerous instances of complaints of citizens wrongly placed on the no fly and watch lists.

McPhee’s problems began in 2003 at BWI airport.  After her first encounter with being on the list, and having missed her flights as a result of a 3-hour delay while she was extensively searched, she “called a family connection who works at an airline and who had access to the watch lists provided by the government to the airlines.”

She learned that she

was being stopped because the list said that an Afghani man was using the last name McPhee as an alias. The list had no first name for him, and the intensive checks would continue until she cleared her name with the ombudsman at the Transportation Security Administration, according to this family connection.

McPhee then began trying to clear her name:

"I was now leaving three hours ahead, being at airports ahead of time, only to still miss planes. I was delayed up to five hours," McPhee said. . . .

McPhee said she called the TSA's complaint line and left numerous messages. Though the recording promised that someone would call her back in 72 hours, the TSA never called her back.

Call logs from TSA's call center acquired by EPIC have no notation of contact with McPhee until May 13, 2004. . . .

The matter finally got resolved when McPhee used her highest connections to get off the list:

Finally, in May 2004, word of Sister McPhee's crusade made its way up to the head of the U.S. Conference of Catholic Bishops, the Rev. Monsignor William P. Fay.

"(Fay) said, 'How are you doing your job?' and I said, 'Barely,'" McPhee said.

Fay then personally wrote to Karl Rove, the top political adviser to President Bush, who contacted then-Homeland Security chief Tom Ridge, who passed the task to a top Homeland Security lawyer.

McPhee said the lawyer immediately got the TSA to respond, and also gave her his cell-phone number in case she was ever stopped again. . . .

Actually, I misspoke when I said McPhee used her highest connections to get off the list.  Her highest connection, God, couldn’t get her off the list.  Only Karl Rove could.  What if you don’t have connections to Karl Rove?  You just have to pray . . . but as we learned, that won’t get you off the list.  So I guess you’re just eternally damned. 

Posted by Daniel Solove on September 27, 2005 at 02:57 AM in Daniel Solove, Information and Technology | Permalink

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» The Flying Nun: from The Volokh Conspiracy
Daniel Solove is blogging about a nun who had trouble flying because her name was on a TSA list of persons marked for special screening at airports. While Dan is focus... [Read More]

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» Blog Update from Secondary Screening
The Electronic Frontier Foundation had a nice little 15th birthday party last night and I ran into fellow Wired News freelancer Ann Harrison. She's got a great story up today about people who strive to stay out of Google's index.... [Read More]

Tracked on Oct 3, 2005 3:45:32 PM

Comments

Actually, Dan, she's not on the "No Fly" list, she's on the "Selectees" list. So its more like purgatory. :)

Posted by: Adam | Sep 27, 2005 9:47:51 AM

McPhee's experience is from 2003-04 and TSA now claims the means for getting off the "Selectees" list has been fixed (see here). But if that turns out to be incorrect I would think McPhee (or someone in her position) would have several causes of action against the government. It seems there is at least a Fourth Amendment violation of the right to be free of "unreasonable searches and seizures". Also perhaps a violation of her 14th Amendment right to travel, although I suppose that would have to apply to the federal government through "reverse incorporation" into the Fifth Amendment. Perhaps also an Equal Protection violation, although that seems sketchy. Any others? The next Sister McPhee should sue for an injunction prohibiting enforcement of the Selectees list against her by TSA or the airlines without particularized suspicion.

Posted by: Bruce | Sep 27, 2005 10:39:09 AM

Bruce: my #1 claim would be procedural due process.

Posted by: Paul Gowder | Sep 27, 2005 12:03:40 PM

Bruce and Paul, surely you are aware the courts have ruled on this already and in favor of the government. Though they could, Congress isn't about to change the rules; who wants to be the Senator or Congressman to be blamed if a nutcase who WAS on the lists gets to fly and brings down a plane?

Posted by: Joe | Sep 27, 2005 3:09:37 PM

Joe, in which cases have courts ruled on this issue?

Posted by: Hugo | Sep 27, 2005 3:17:18 PM

Joe: I don't think anything definitive is on yet. Gilmore v. Gonzales, which is about ID requirements, is pending before the 9th circuit. The ACLU brought a suit about the no-fly list which, last I heard (about the end of last year) was pending in federal district court in Seattle, but I haven't heard about anything higher. I haven't been tracking it, but it seems a little overbroad to say that "the courts have ruled on this already and in favor of the government."

Posted by: Paul Gowder | Sep 27, 2005 3:20:29 PM

"Though they could, Congress isn't about to change the rules; who wants to be the Senator or Congressman to be blamed if a nutcase who WAS on the lists gets to fly and brings down a plane?"

Of course, it was poetic justice when Senator Kennedy found it difficult to fly because his name was on one of those lists. (Of course, the TSA was not necessarily serving public safety if their efforts led Kennedy to drive rather than take the plane from Boston to Washington.)

Posted by: Seamus | Sep 28, 2005 12:58:29 PM

I can't wait for the day when all the world's terrorists just legally change their names to John Smith, Don Johnson or Tom Jones. Actually, they should all just take the name George Bush.

Posted by: jimbino | Dec 7, 2005 5:41:53 PM

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