“Closing the No-Fly List loophole is a no-brainer,” Barack Obama tweeted on Tuesday, arguing that Congress should pass laws to prevent anyone on the government’s terrorist watch list from buying a gun.

On the surface, it seems sound logic to prevent weapons falling into the hands of terrorists. Yet there are many on both the left and right of the political spectrum who question the president’s faith in the no-fly list. Even some diehard opponents of private gun ownership suggest that Obama has chosen the wrong line of attack.



Drawn up by the FBI in the wake of the 9/11 attacks, the no-fly list is widely held in disrepute. It contains 700,000 names, according to one estimate, and has mistakenly included infants, US military veterans and politicians including Edward Kennedy and John Lewis. Critics describe it as unwieldy, unfocused and unlikely to achieve its aims – a sledgehammer to crack a nut.

“The public can’t have any confidence in the list itself,” said Tim Sparapani, a privacy consultant at SPQR Strategies. “It should be a very small list of people with the means, motive and opportunity to create havoc with travel. It seems to have been hastily assembled and not properly scrubbed.”

The exact number of people on the list, and the criteria used to put them there, are state secrets, although past travel to certain countries, social media postings, drug use and human error are believed to be factors.



“It cannot be effective because there is no sense of due process for individuals to get on and off the list,” Sparapani continued. “Any list that’s had as many reported problems as this one calls into question how useful it is.”

A recurring problem is that people with similar names get caught in the net, causing, at the very least, repeated irritation. This is particularly acute with imprecise English translations from languages such as Arabic.

Until the list is fixed, opponents hold, it should not be used to curb freedoms. “It’s better for the government to focus on known terrorists and have a tiny list than have a bloated list that comprises hundreds of thousands of individuals and diverts attention and resources away from the target,” Sparapani added. “It is the illusion of security without the enhancement.”

The no-fly list is among the most secretive official measures born of 9/11. Estimates of its size vary. A source at the Government Accountability Office, the investigative arm of Congress, said the number doubled after the so-called underwear bomber Umar Farouk Abdulmutallab was caught on a US-bound flight 2009.

According to the FBI’s terrorist screening center, which maintains the list, there were approximately 16,000 people, fewer than 500 of them Americans, on the no-fly list as of September 2011. This had risen to 47,000 people in August 2013, including about 800 Americans, a leak to the Intercept news media site revealed.

The numbers are thought likely to be higher now but the FBI declined to comment.

Dave Joly, a spokesperson for the screening center, said that it did not publicly confirm or deny whether someone was on the list.

“Disclosure of an individual’s inclusion or non-inclusion in the TSDB [Terrorist Screening Database] or on the no-fly list would significantly impair the government’s ability to investigate and counteract terrorism,” Joly said.

Among the high-profile blunders, Ted Kennedy told the Senate judiciary committee in 2004 that he had been halted and interrogated at least five times at several different airports. A government administration official told the Washington Post that Kennedy was held up because the name “T Kennedy” had become a popular alias among terrorist suspects.

In 2012, JetBlue airline removed an 18-month-old girl from a flight before takeoff after she was flagged as no-fly. JetBlue later apologised, blaming the incident on a computer glitch.

Getting on the list is much easier than getting off. Rahinah Ibrahim, a Malaysian citizen and Muslim, was stopped from flying in 2005 at San Francisco’s airport. It took her nine years in the courts to finally clear her name before she could board a plane again.

In another lawsuit last year, four American Muslims accused the FBI of placing them on the no-fly list either to intimidate them into becoming informants or to retaliate against them for declining.

In 2010 the American Civil Liberties Union (ACLU) filed a legal challenge on behalf of 10 (later 13) US citizens and permanent residents who were on the no-fly list. It argued that the individuals were never told why they were on the list or given a reasonable opportunity to get off it, and described how the ban had severely affected their lives.

Last year, a court ruled that the system for challenging inclusion on the list was unconstitutional, and the government announced in April 2015 that it would tell US citizens whether they are on the list and possibly offer some reasons. But the ACLU contends that the new redress process still falls far short because it denies people meaningful notice evidence and a hearing.

On Wednesday, the ACLU will argue in court that the standards for inclusion on the no-fly list are unconstitutionally vague. Hina Shamsi, director of the ACLU National Security Project, said: “The government puts people on the no-fly list using vague and over-broad standards, and it is wrongly blacklisting innocents.”

“The government has emphasized that it is making predictive judgments that people like our clients – who have never been charged let alone convicted of a crime – might nevertheless pose a threat,” Shamsi wrote in a blog post this week. “As we’ve told the court based on evidence from experts, these kinds of predictions guarantee a high risk of error. If the government is going to predict that Americans pose a threat and blacklist them, that’s even more reason for the fundamental safeguards we seek.”

Obama and his press secretary, Josh Earnest, have linked the no-fly list to gun control in a series of speeches and tweets, evidently believing they have found a potential breakthrough in the long struggle for gun control. But last week Senate Republicans blocked an effort to use the list as a guideline for new restrictions on firearm purchases.



Marco Rubio, one of the party’s presidential contenders, told CNN: “The majority of people on the no-fly list are oftentimes people that basically just have the same name as somebody else, who don’t belong on the no-fly list. These are everyday Americans that have nothing to do with terrorism.’’

Analysts believe the list should be fixed rather than scrapped, however. Karen Greenberg, director of the Center on National Security at Fordham University, said: “The National Rifle Association is using the argument the list is bogus for its own purpose. I think a more legitimate list would be better for a whole range of reasons, including the ability of the NRA to bypass restrictions. We should make the list narrow, focused and evidence based.”