Red Flagging Civil Liberties and Due ProcessRights of Airline Passengers: Will aRedesigned CAPPS II System Meetthe Constitutional Challenge?

Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.1I. IntroductionOver two million passengers travel by air each day in the United States,2 making airline travel a vital part of our modern society. The ready availability and low cost of flights to locations both within the United States and abroad provide the American public with an efficient, convenient, and relatively inexpensive form of travel.3 Americans can board one of the thousands of flights departing from airports around the country each day4 and travel hundreds of miles for business meetings, vacations, or visits with family and friends in only a matter of hours. Passengers can board a plane in Los Angeles and be in New York City in six hours5 or in Honolulu in a little over five hours.6 Other forms of transportation provide neither the expediency nor the convenience of airline travel. For example, the approximate driving time from New York to Los Angeles is more than forty-one hours,7 and an Amtrak train scheduled to leave New York at 2:50 p.m. on Monday afternoon will not arrive in Los Angeles until 8:20 a.m. on Thursday, almost sixty-nine hours later.8 Yet, as much as Americans have come to rely on the ease and efficiency of airline travel, the government's response to the tragic events of September 11, 2001 (September 11) threatens to limit the public's ability to travel by air.On September 11, nineteen hijackers flew two planes into the World Trade Center, causing the collapse of both towers and killing over 2800 people.9 The hijackers flew a third plane into the Pentagon, causing an additional 184 deaths, and a fourth plane crashed in western Pennsylvania, killing all forty passengers and crew members on board.10 The hijackers turned the four commercial airliners into weapons of mass destruction, proving that airline security was no longer only a matter of safeguarding the flying public, but it was also a matter of protecting national security." The events of September 11 changed the course of America's history and encouraged the nation's leaders to reassess the balance between civil liberties and the security of the nation.In a press conference on the night of September 11, Secretary of Health and Human Services, Tommy G. Thompson, began his remarks by stating that "[e]very single American lost something today."12 As much as Americans lost on September 11, the extent of the liberties we stand to lose as a result of legislation and regulations enacted in the wake of September 11 remains to be seen. As Justice Thurgood Marshall wrote:History teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure. The World War II relocation-camp cases, . . . and the Red Scare and McCarthy-era internal subversion cases . . . are only the most extreme reminders that when we allow fundamental freedoms to be sacrificed in the name of real or perceived exigency, we invariably come to regret it.13Indeed, the discord between civil liberties and national security that has surfaced in the post-September 11 era, with the passage of bills such as the USA PATRIOT Act14 and the enforcement of government policies that call for the indefinite detention of enemy combatants and increased surveillance of American citizens,15 is not a new phenomenon. In the midst of the Civil War, Abraham Lincoln suspended the writ of habeas corpus.16 During World War I, the courts permitted restrictions on the freedom of expression and prosecuted many foreigners living in the United States because of their suspected political views.17 The government interned over 100,000 Japanese-Americans during World War II, stripping them of their homes and their freedom.18 In the 1950s, Congress, led by Senator Joseph R. McCarthy, sought to rid the nation of persons with suspected Communist ties.19 In hindsight, these severe restrictions on the civil liberties of United States citizens are unsightly blemishes on the record of a country that was founded on the ideals of democracy and freedom. …