The two San Francisco women were eventually allowed on the plane, but the activists became committed to finding out why they had been singled out. Was it because they had common names, or had the government singled them out because they published War Time, a San Francisco anti-war newspaper?
An airline employee told them they were on ''the FBI no-fly'' list. But they still don't know why, because the government refuses to publicly say how or why they target air travelers for special screening.
The women filed a precedent-setting lawsuit they and others believe has helped the Transportation Security Administration begin reforming its passenger screening policies. Last August, Sen. Edward Kennedy told a Senate committee he had been stopped several times because his name had appeared on an airport watch list, a revelation that also helped prompt congressional action.
On Friday, San Francisco U.S. District Court Judge Charles Breyer heard ongoing arguments in the women's legal battle, which began when the American Civil Liberties Union filed a Freedom of Information Act Request in 2003 on their behalf. It sought FBI and Department of Homeland Security documents explaining how passenger watch-lists are put together. The plaintiffs also think the flying public should know how to get off the lists, if placed there by mistake.
In October, after being chastised publicly by Breyer for not complying with their Freedom of Information Act request, the Justice Department turned over more than 300 pages of documents, including e-mails underscoring how subjective and confusing government workers found the system. ''We have been given no explanation,'' said Gordon, referring to the initial San Francisco delay. But, added Adams, ''the pressure of the lawsuit has helped drudge up some interesting information.''
Tom Burke, an attorney representing the ACLU, told Breyer on Friday that while the October documents helped shed light on screening lists, which had grown from 16 names prior to Sept. 11 to well over 10,000, other key information was redacted, including exactly who at the FBI and TSA are developing the criteria for targeting passengers, and what the criteria are.
Burke told the judge he has been subjected to extra security searches and later said he cannot print his boarding pass from home because ''There's a Tom Burke on the list. I don't know if they mean me, because I'm representing the ACLU, or it's another Tom Burke.''
At times, criteria previously considered by the government appeared bizarre. Burke pointed to a February 2003 FBI e-mail first released last October. It read: ''Criteria are confidential but involve things passengers might do which also might be things a terrorist would do, e.g., pray to Allah right before the flight that you might have 90 virgins in heaven.''
Burke argued, even if the specific e-mail was only an insensitive joke, the public has the right to know who wrote the e-mail. Both the sender and recipient had been redacted.
Government lawyers told Breyer that identifying the e-mail author and any others who develop ''very sensitive and very controversial'' screening criteria could prompt ''a lot of unwanted attention, harassment and potentially very serious consequences.'' They also argued that other documents sought by the ACLU illustrating how the criteria process was developed were protected because they are part of ''the deliberative process.''
Breyer, who is expected to make a decision on whether the government has fully complied with the Freedom of Information Act request within a few months, said ''I'm trying to balance the right of the public to know who makes the policy.''
TSA spokesman Nico Melendez said he could not comment on an ongoing legal matter. But he said new policies are being put in place to reduce the confusion.
He said the agency's goal is to cut the percentage of inconvenienced air travelers from 15 to 5 percent. Travelers with questions or complaints can contact an ombudsman at (http://www.tsa.gov) www.tsa.gov.
