Photo by Wikimedia Commons

For the past two years, the American Civil Liberties Union (ACLU) has been challenging the US government’s No-Fly List. It has raised objection to the secrecy surrounding the list and the fact that people, who are on the list, are typically not told why their name is on the list. The government also does not give those on the list a fair opportunity to have their name removed. Now, the ACLU is taking a case against the government before a federal appeals court.

The case is being brought on behalf of fifteen US citizens and permanent residents. Four of them are military veterans. Each person has been prohibited from flying to or from America. They also are not permitted to fly over US airspace.

The lawsuit, according to the ACLU, was filed in June 2010 against the FBI and the Terrorist Screening Center (TSC), which is a subagency. A district court dismissed the case on May 3, 2011, claiming the lawsuit should be filed against the Transportation Security Administration (TSA) because it “administers the redress process for travelers denied boarding.” But, the ACLU contends the government has admitted that the TSA “plays only a ministerial role.” The TSC makes decisions about who to put on the No-Fly List. The ACLU has the correct agency, and, therefore, is filing an appeal.

Here’s a list of some of the people that the ACLU is representing:

  • Ayman Latif, US citizen and disabled Marine veteran. He is barred from flying to the US and, as a result, cannot take a required Veterans’ Administration disability evaluation. He also cannot bring his two children to visit family in the US.
  • Samir Mohamed Ahmed Mohamed, a US citizen. He is not allowed to fly home to the US because he visited family in Yemen.
  • Ibraheim (Abe) Mashal, a US citizen and US Marine Corps veteran. He is a dog trainer, who is not allowed to board a plane to do business with clients outside of Illinois, his home. He has three children.

According to the ACLU, people like Latif, Mohamed and Mashal have been “denied their Fifth Amendment right to due process and rights under the Administrative Procedure Act by failing to afford them a meaningful opportunity to contest their inclusion” on the No-Fly List.

To date, the TSC has not made it known “what standards or criteria are applied to determine whether an individual” should be placed on the No-Fly List. The TSC determines “whether terrorist identifiers” are removed from a Terrorist Screening Database. And, at this point, there is no public information on how the TSC goes about removing information from the database.

One might recall in February it was reported the US No-Fly List had doubled from 10,000 people to 21,000 people in about a year. This was largely a result of a “new standard” that allowed the TSC to list a person that isn’t necessarily a threat to aviation.

People considered a broader threat to domestic or international security or who attended a terror training camp are also included, said a US counter-terrorism official who spoke on condition of anonymity. As agencies complete the reviews of their files, the pace of growth is expected to slow.

As is made quite clear, the No-Fly List grossly violates people’s mobility rights. It violates US citizens’ rights to leave and return to their country. It ties one up in a Kafkaesque effort to figure out what it is you have actually done to end up on the list. The bureaucratic watch list disrupts people’s lives and the worst part is the bipartisan political support, which it enjoys, that makes it likely the list will one day apply to not only aviation but also rail travel.

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In June 2011, Prism TV produced a “Rights and Security” discussion that featured former Guantanamo detainee and human rights activist Moazzam Begg and ACLU staff attorney Ben Wizner. While the video is older, the issue of America’s No-Fly List receives almost zero discussion and is worth revisiting.

Wizner explains that the No-Fly List has really gotten worse since President Barack Obama took office and that is largely a result of politics. Ever since the failed Christmas Day bomb attempt in 2009, the list has expanded. The US “would prefer to inconvenience or really violate the rights in a serious way of thousands of people than to have one person slip through” and commit an act of terrorism. As a result, citizens have found themselves essentially “banished” and unable to return because they have been added to the list.

The ACLU has been able to convince the government to help “repatriate” those stuck abroad in countries like Yemen or Libya and bring them back home. As Wizner notes, that shows the “irrationality of the entire system.” The travesty is that people are currently placed in a category of “too dangerous to fly” but “not scary enough to arrest.” The result is people are placed in the “ironic position where the less evidence the government has the fewer rights” they have.

Additionally, people from foreign countries are impacted by the no-fly list. Cables released by WikiLeaks showed leaders from other countries have become angry because they have been put on lists. Former Guantanamo detainees have also been placed on the No-Fly List.

Begg recounts an incident when he tried to fly to Canada for a tour.

I was told at the Canada check-in desk that my name was on some sort of a no-fly list and I asked whether this was a Canadian no-fly list. They said no. It was an American no-fly list. I said I am not going to America. I’m going to Canada. And then they said after speaking to various authorities and people in charge of security on the Canadian mainland that they weren’t prepared to take the risk in the unforeseen or likely event that an aircraft is rerouted onto US airspace.

The absurdity here is that Begg has toured just about every continent. In a diplomatic cable released by WikiLeaks, he is lauded by the US Ambassador to Luxembourg for his effort to help resettle Guantanamo detainees in countries. He has been able to return to the location in Pakistan where he was kidnapped by CIA agents. But, he cannot visit and tour the North American continent freely.

Begg concludes this is the product of a “refusal to accept” that the US “got it so terribly wrong.” This is happening because the US realizes to accept they got it wrong in Begg’s case means they have to accept they got it wrong in hundreds of other cases. There has been no change in the legal process or the language since Obama took office. There is a fear, but what the government should do is make it clear that released detainees are no longer terror suspects and clear those individual’s names.