Flickr Photo by caribb

The Ninth Circuit United States Court of Appeals reversed a ruling on July 26 that now allows the American Civil Liberties Union’s (ACLU) lawsuit against the heads of the Justice Department, the Federal Bureau of Investigation (FBI) and the Terrorist Screening Center (TSC) to go forward. The court remanded it to the US District Court of Oregon, which previously had decided to dismiss the case over a technicality because the court believed it should have been filed against the Transportation Security Administration (TSA).

The case involves 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. (For more on the plaintiffs, here’s biographical details.)

The appeals court judge determined:

…Plaintiffs have raised both a substantive challenge to their own apparent inclusion on the List and a procedural challenge to the advocacy of the redress procedures available to challenge their apparent inclusion on the List…

The judge also found, “If Plaintiffs are entitled to judicial relief, any remedy must involve both TSA and TSC.” And, with regards to TSC, the decision declared “the sole entity with both the classified intelligence information Plaintiffs want and the authority to remove” Plaintiffs from the No Fly List is the TSC.

As detailed in the decision, after the September 11th attacks, a No-Fly List was developed by the TSC as a “response to concerns about the lack of intelligence-sharing among federal agencies.” The National Counterterrorism Center and the FBI “submit nominations of known and suspected terrorists and TSC then decides who to include on the List based on classified intelligence.” This List is then provided to the TSA, which “implements the List at the airport.

Furthermore, as outlined in a footnote in the decision:

The List is a subset of a terrorist screening database maintained by TSC. To be included in the database, a nomination must (1) contain sufficient identifying data so that a person being screened can be matched to or disassociated from the record, and (2) satisfy minimum substantive derogatory criteria. Generally, nominations must be based on reasonable suspicion derived from the totality of available information that the individual is a known or suspected terrorist. Reasonable suspicion in this context requires “ ‘articulable’ facts which, taken together with rational inferences, reasonably warrant a determination that an individual is known or suspected to be, or has been engaged in conduct constituting, in preparation for, in aid of or related to, terrorism and terrorist activities.” The List has its own minimum substantive derogatory criteria, which the government has not disclosed.

The ACLU argues the fifteen people they represent have not been given an explanation for why they are on the No-Fly List. They have not been given a “reasonable opportunity to get off” the List. They are challenging the government’s claimed authority “to put people on secret lists and deny them the right to travel without even basic due process.”

The criteria that TSC applies when deciding to list a person is not public information. Moreover, in February, it was reported the 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.

However, the government is unable to give a good answer to the question of what a person should do if they believe their rights are being violated because they have been wrongfully put on the List:

…At oral argument, the government was stymied by what we considered a relatively straightforward question: what should United States citizens and legal permanent residents do if they believe they have been wrongly included on the No Fly List?…

As the List continues to balloon in size and politicians ponder the possibility of expanding it so it might be applied to rail travel, there must be a way for citizens to get de-listed. Government should not be allowed to so easily violate a person’s right to leave and return to their country, even if it is a mistake. And for that reason, the fact that the ACLU challenge can proceed forward is welcome news.