"Although CAPPS II faces an uncertain future, the development of its successor still lurks in the shadows," said LaShawn Warren, an ACLU legislative counsel. "Congress must ensure the adoption of any aviation security measures truly bolster security and contain privacy and due process protections. As currently administered, the no-fly list is saturated with false positives – people who simply should not be on the list and have no way of getting off."
The ACLU raised its concerns as the House Transportation and Infrastructure Subcommittee on Aviation held an oversight hearing on the recommendations of the 9/11 panel. Warren noted that the 9/11 Commission took no position on whether the CAPPS II should go forward.
However, the 9/11 Commission did strongly recommend broad expansions of "no-fly" and "automatic selectee" lists. Such lists have garnered media attention due to recent accounts of Sen. Ted Kennedy (D, Mass.) and Rep. John Lewis (D, Ga.) being kept from boarding their planes because their names appeared on such a list. Kennedy revealed he was kept waiting five times in terminals at Reagan National, Boston's Logan International and at least one other airport while officials at US Airways double-checked his identity and waited for a supervisor to approve his identification. "T. Kennedy" is an alias used by one suspected terrorist on the no-fly list.
The ACLU is currently involved in litigation challenging the constitutionality of no-fly lists. The no-fly list has spawned a long list of, in the words of the ACLU's lawsuit, "stigmatization, interrogation, delay, enhanced searches, detention and/or other travel impediments for innocent passengers."
The ACLU recommended that Congress enact a process to ensure independent review of the no-fly lists, and establish recourse to allow those wrongfully included to clear their names. Currently, there is no uniform system to address grievances with the Transportation Security Administration.
"Invasive, categorical profiling is not the answer," Warren said. "If it takes Senator Kennedy three weeks to get off a no-fly list, what are average Americans supposed to do when they are wrongly targeted? Every hour spent dealing with an innocent American is an hour lost spent finding the real threats to airline security."