Bernstein — Volume 61, Issue 3

The No Fly List serves as a counterterrorism tool to prevent suspected terrorists from flying, but Bernstein examines the broader consequences of such watch lists beyond individual rights violations. Drawing on the consolidated terrorist watch list infrastructure maintained by federal agencies, the article reveals how these lists inherit problems from their source lists and remain unarticulated, unappealable, and obscured from public scrutiny. Bernstein argues that the doctrinal development in cases like Latif v. Holder creates standing for individuals to challenge list placement, but the underlying problem persists: watch lists affect not only those listed but also the agents administering them, government agencies commissioning them, and society broadly. The article identifies perverse incentive structures that encourage false positives while discouraging the self-correction that would improve list efficacy. Using regulatory theory, Bernstein proposes constraining watch list creation through administrative self-regulation and Bayesian updating mechanisms, while acknowledging that partial solutions will always remain necessary given the fundamental conflict between security objectives and due process.

Topics: Constitutional Law · Administrative Law · Civil Rights · First Amendment

Keywords: No Fly List · Latif v. Holder · terrorist watch lists · due process · standing to sue · false positives · administrative regulation · surveillance