By now, it’s likely that you must have encountered at least one viral video of an airplane passenger having a capillary-bursting meltdown-in-the-sky over federal mask mandates—and if not, there are dismayingly many to choose from. According to Federal Aviation Administration data, 2021 was a watershed year in significant behavioral incidents sparked by unruly passengers; Delta Airlines has claimed that such events have skyrocketed by over 100 percent since 2019. Wherever passengers behave badly, flight crews have been forced to mollify or subdue fliers mid-tantrum, often enduring verbal or physical abuse in the process.
Now Delta has come up with a god-awful idea to restore peace to the skies: The company wants a federally enforced “no-fly list” for unruly passengers, and it’s pleading its case far and wide. After floating the idea with the FAA last fall, CEO Ed Bastian requested earlier this month that the Justice Department take concrete steps to implement the plan and further detailed his argument in an op-ed for The Washington Post. While individual airlines can and do keep their own internal list of banned problem fliers, such people are still free to book tickets on a competing carrier—a loophole Bastian characterizes as a dangerous security flaw that puts others at serious risk.
“Holding individuals accountable for criminal behavior shouldn’t be a controversial or partisan issue,” he wrote. “A national no-fly list, maintained with the full authority of the federal government, would be an effective tool to help ensure that, as our nation returns to the skies, the worst offenders are grounded.” The Association of Flight Attendants has more or less echoed the call, as have multiple news outlets. Secretary of Transportation Pete Buttigieg has signaled openness to the idea; a whopping 93 percent of respondents in one poll agreed.
They’re wrong. A centralized, federal no-fly list—even for egregious and criminal misbehavior in flight—is a terrible idea. There’s no persuasive evidence it would do anything to help, and it poses the same serious due process concerns that have dogged the anti-terrorism measure Bastian and his allies are implicitly validating by retrofitting it to commercial aviation. From the very bottom of my heart, I am begging people: Stop trying to reappropriate “war on terror” ideas in the quixotic hope that they might serve some just end or create a good outcome. You can’t, they don’t, and they never will.
That so many people find Bastian’s plea compelling is understandable: The episodes his proposal is reacting to are appalling. In 2021 alone, nearly 6,000 “unruly passenger reports” were logged by the FAA, around 70 percent of which related to mask regulations, and 350 of them triggered enforcement action. As anyone who’s watched iPhone camera footage of underpaid flight attendants calmly explaining basic public health protocol to belligerent anti-mask extremists can attest, no worker deserves this crap—but around 85 percent of flight attendants last year reported dealing with such customers, and 17 percent report altercations involving physical assault.
As it happens, the most forceful critics of the potential new “no-fly list” are right for the wrong reasons: Eight Senate Republicans recently sent a dissenting letter to Attorney General Merrick Garland denouncing the idea, essentially waging culture war by contending that anti-maskers have a point and it’s unfair to equate them to terrorists. The Washington Post editorial board swiftly dubbed them the “Aviation Threat Forgiveness Caucus.”
But what threat is being forgiven, exactly? Presumably to avoid the most obvious due process issues at play here, proponents of the “no-fly list” have generally specified that the blunt blanket ban would apply only to those convicted of disruptive outbursts. But the FAA has already launched a so-called “zero tolerance” campaign to confront the issue, fining perpetrators tens of thousands. Garland’s DOJ has also prioritized such cases, filing additional criminal charges against people responsible for certain incidents. Penalties can be severe: Defendants can face multiple charges; some have faced over $250,000 in fines and 20 years in prison—a level of harshness not remotely compatible with “aviation threat forgiveness.”
However loathsome these plane jerks have been, the steady drumbeat toward tossing a new no-fly list atop everything else should make people uncomfortable: No one has voted on this, and several of these incidents appeared to entail what witnesses characterized as a likely mental health crisis. Overwhelmingly, these upsetting episodes have not resulted in significant injuries. It’s tough to make the case that banishment from air travel provides either punishment or deterrent value that the hefty fines and threat of incarceration already in place are incapable of delivering. And if the goal here is incapacitation—as it seems to be, given the focus on keeping these passengers from switching airlines—then it’s even more useless. While Bastian notes that there have been cases of people banned by one carrier later flying with another, there’s exactly zero data to suggest that even a single one of these people has ever reoffended.
Allow me to underscore just how dumb that premise really is: The CEO of the only major nonunion airline—a company that, amid these rising air rage incidents, has waged war with its workers over pandemic protections, undermining this guy’s ostensible concern with their safety—has spent months bellowing about the dire need to carve out a new legal category to keep a tiny group of already severely punished people from traveling by plane ever again. This is allegedly necessary to prevent not first offenses but second ones—something that does not appear to have ever happened.
But here are a few things that absolutely have happened: The existing federal no-fly list has wrecked people’s lives, with no democratic accountability or explanation, and those who have had their names affixed to it have been given little recourse to argue for their removal. At least one woman wound up on it through a paperwork error, and it took seven years of litigation for the Obama administration to finally admit its error. It’s prevented people from visiting ailing loved ones, cost them their livelihoods, separated families, and dragged people through pointless years of litigation. And if the “no-fly” list is hardly the most gruesome injustice committed in the context of the war on terror, it’s clear that the expansion of these frameworks well beyond their intended purpose has had a devastating impact on American life. As Spencer Ackerman chronicled in his book Reign of Terror, the war on terror led not only to decades of war in Iraq and Afghanistan and the torture of suspected terrorists but the erosion of civil liberties in an entirely domestic context—including the militarization of police forces, mass surveillance, and deportation squads.
Given just how corrosive the war on terror has been, recent pushes to reclaim it for liberal ends are simply gobsmacking. From calls to beef up domestic terrorism laws after January 6, 2021, to a sparkling new no-fly list for people found guilty on air travel disruption charges—these are proven-to-fail tactics that make life worse for innocent people while leaving the larger underlying problem unconfronted. The hasty handover of immense power to law enforcement and the criminal justice system in the wake of 9/11 was a shameful and reactionary idea, and we’re all worse off because of it. It’s time to stop pretending that it can be redeemed.
