MISUSE OF THE "NO-FLY" SYSTEM RISKS UNDERCUTTING

S E C R E T SECTION 01 OF 03 PARIS 004921

SIPDIS

NOFORN

DHS FOR DEPUTY SECRETARY JACKSON FROM AMBASSADOR STAPLETON
STATE FOR EUR, EB, S/CT AND C
CPB/NTC-TIM GAYGER AND SUSAN LANE
FBI HQ FOR COUNTERTERRORISM DIV.--DAD JOSPH BILLY
FBI HQ ALSO FOR INTERNATIONAL OPERATIONS--MICHAEL WELCH
CIA FOR CTC
BRUSSELS FOR TSA

E.O. 12958: DECL: 07/11/2015
TAGS: EAIR PTER FR
SUBJECT: MISUSE OF THE "NO-FLY" SYSTEM RISKS UNDERCUTTING
U.S. CREDIBILITY IN THE FIGHT AGAINST TERRORISM

REF: PARIS 619

Classified By: Ambassador Craig Stapleton for reasons 1.4 (B) and (D).


1. (C) SUMMARY: On July 8, 2005, shortly after my arrival as
Ambassador, the U.S. Transportation Security Administration
directed the return of Air France flight 50 (AF50) because of
the erroneous conclusion that a specific U.S. citizen
manifested on the flight constituted an active terrorist
threat to aviation and to the U.S. This incident has raised
questions about Washington interagency coordination, the
credibility of the no-fly system, the costs involved, and
communication during aviation security incidents.


2. (C) As I have reviewed the events around the return of
AF50, I have come to believe that they raise questions about
the functioning of the no-fly system. These appear to
include poor interagency coordination, incomplete data on the
lists, poor communication in Washington during diversions,
shrinking credibility for the "no-fly" system, and
substantial uncompensated costs for USG errors. Repeated
incidents obviously diminish our credibility on security
matters. If an unjustified flight diversion someday results
in an accident or the inconvenience of a public figure, we
will be hard pressed to defend the effectiveness of the
system. Now is the time to fix it. END SUMMARY

==========
THE EVENTS
==========


3. (S/NF) Based on the information currently available to us,
the series of events which appears to have led to this
diversion is as follows:

a. 1960: Subject is born in Jordan 01/01/1960 with the birth
name of Khalifa Mustafa Khalifa Al-Aruri.

b. 1984: Subject becomes a naturalized U.S. citizen, under
the name Khalifa Abed. He has two wives: one in the U.S.
with one child, and one in Jordan with two. He settles in
Chicago, with wife and one child, born in the U.S.

c. Subject is the brother of Al Zarqawi lieutenant Khalid
Mustafa Khalifa Al Aruri. He is investigated by the FBI, and
interviewed by them in October 2004. He was reportedly
forthcoming and openly acknowledged his brother,
characterizing him as a shame to the family. The FBI
subsequently designated him as a selectee on 6/21/05, with
the concurrence of ICE and the CIA through Chicago JTTF and
NCTTF at FBI HQ.

d. July 2005: USG learns that Subject will fly to U.S. on
July 8 from Jordan. According to Legatt, JTTF Chicago and
FBI HQ Washington determine that Subject should be listed as
a selectee, allowed to fly, and be subject to questioning on
arrival in U.S.

e. 7/7/05: Subject is nominated for the no-fly list,
apparently by NORTHCOM, and entered as such by TSC, but only
under birth name of Khalifa Mustafa Khalifa Al-Aruri. Known
"alias" Khalifa Abed was not entered into list.

f. 7/8/05: Subject boards AF50 under name he has used as U.S.
citizen since 1984, Khalifa Abed, using U.S. passport
#206327686. Air France had no reason to see a match based on
no-fly listing of birth name, or selectee listing of similar
name with different DOB. After take-off, APIS data
apparently triggers link between "alias" and birth-name
no-fly listing.

g. 7/8/05 Washington interagency decision is reached to order
return of AF50 to Paris. It is unclear to post how earlier
JTTF Chicago/FBI HQ discussion figured in this decision.

h. 7/8/05: Subject and family members are publicly asked to
identify themselves and escorted off the flight by French
police. At request of FBI HQ, Legat and ICE interview
subject and two accompanying persons upon return to Paris
Charles de Gaulle Airport, in the presence of French National
Police. They recommend to Washington that Subject be allowed
to fly to U.S. Washington agrees.
i. 7/9/05: Subject authorized to depart Paris for Chicago on
Air France flight 50.

==========
THE ISSUES
==========


4. (S/NF) Poor interagency co-ordination: The JTTF
Chicago/FBI HQ decision on subject's travel seems not to have
been taken into account by Washington agencies responsible
for No-Fly enforcement. NORTHCOM apparently nominated him
subsequently for the No-Fly list, with NCTC concurrence.
Were earlier deliberations (subsequently validated by the
decision to allow him to return to the U.S.) taken into
account in this decision?


5. (C) Incomplete listings: Even if the listing had been
proven justified, why weren't known aliases (figuring on his
U.S. travel documents) listed in addition to the subject's
birth name?


6. (C) Communication: The no-fly system is set up to
facilitate direct communication between airlines, the TSA
operations center, TSA representatives, and other government
agencies involved in the origination of no-fly list entries.
The GOF and the USG have previously agreed that the Embassy
would be the key intermediary in managing aviation security
incidents. Washington agencies have shown no inclination to
consult with overseas posts to resolve inconsistencies in
ongoing No-Fly cases. Moreover, the bifurcation of TSA
responsibilities between TSA IPSI in Brussels and the TSA
representative in Paris serves us particularly poorly in
incidents such as this. It illustrates once again the need
to improve the delivery to Embassy officials of timely,
reliable information that can be used to respond credibly and
rapidly to our GOF interlocutors.


7. (S/NF) Credibility: The credibility of our No-Fly system
has been called into question with a government that is
critical to the success of the program. Post has yet to see
a no-fly case or France-origin flight diversion that made
practical sense, as previous reporting has noted (reftel).
In some cases (like this one),individuals who have provoked
USG concern on flights from France to the U.S. had previously
been allowed to board and fly on flights originating in the
U.S. The French have done the math on no-fly entries: they
are far too numerous, and in many cases do not figure on
France's own intelligence service lists of terrorist
suspects. Decisions such as the one to include Al Aruri only
highlight weaknesses in U.S. interagency anti-terrorism
coordination, and the arbitrary nature of many of the
decisions to include people on our no-fly list.


8. (C) Cost and Inconvenience: Air France has suffered tens
of thousands of dollars of losses, and the GOF was forced to
scramble fighters to escort the returning AF50. We are told
that Air France's legal department is studying possible
recourse against the USG for compensation. French sources
have also told us that the issue would be raised in the EU
context. In addition, hundreds of passengers have been
inconvenienced, and several U.S. citizens have been
needlessly harassed and humiliated.


==================
HOW DO WE RESPOND?
==================


9. (S/NF) This case underlines the need for scrupulous
interagency monitoring of entries in the No-Fly list. I
cannot credibly make the case to the GOF that all of the
approximately 38,000 names currently on the list represent a
threat to aviation with repeated, public demonstrations to
the contrary, including not flagging those names when they
depart the U.S. We need to develop a plan to coordinate
better with overseas governments and airlines, in order to
make our system more effective and to provide earlier warning
of potential no-fly cases.


10. (C) The GOF expects a detailed description of what
happened, in properly classified form, with assurances that
we are making progress on fixing the problem. It is not in
our interest to leave the GOF with the impression that we are
ignoring these issues if we wish them to take our no-fly
lists seriously. Washington should also decide what actions
are appropriate to take regarding the affected U.S. families.
More broadly, we need to look at how we respond to mistakes
we make in administering the no-fly system and prepare for
them in advance. Future errors of this sort are virtually
inevitable, and will only be compounded if we appear to
ignore legitimate complaints from our foreign partners.


11. (C) State needs to take a closer look at its own role in
no-fly diversions. Was it aware of JTTF Chicago-FBI HQ
information? Did it play a role in the interagency decision
to turn back AF50? Better access during crises to existing
interagency information and better communication between
Washington decision points and overseas posts is necessary.
The Department seems increasingly invisible in cases that
have the potential to do serious damage to bilateral
co-operation on airline security, and that are extremely
unhelpful to our overall relations with the GOF.


12. (C) Events such as our action-over-substance diversion of
AF50 undermines the serious intent behind our No Fly/Selectee
Emergency Amendments (EAs). Major corrections are needed to
make our EA lists more credible, to improve Washington
anti-terrorist coordination, and to ensure that the
Department and Post is fully and rapidly informed of
developing situations.

STAPLETON
STAPLETON