In a what the American Civil Liberties Union (ACLU) considers a “first of its kind” lawsuit, the ACLU has filed a motion seeking a ruling from a federal district court in Oregon on the constitutionality of the United States government’s secret No-Fly list. The ACLU argues the list violates citizens’ Fifth Amendment right to due process.

The ACLU represents fifteen citizens and lawful residents, who were prohibited from flying to and from the United States. They were not informed of why they were being put on the list and were given no chance to clear their names.

The brief filed argues:

…The undisputed facts show that Plaintiffs’ placement on the No Fly List severely restricts their liberty interest in travel by banning them from flights to and from the United States, and  over U.S. airspace, and from ships sailing to and from the United States…The undisputed facts also show that inclusion badly harms Plaintiffs’ liberty interest in reputation, because Defendants have branded Plaintiffs as suspected terrorists while preventing them from exercising rights they otherwise have to fly…

Hina Shamsi, director of the ACLU’s National Security Project, told Firedoglake, “It is a modest and fundamentally important question, which is, when the government puts you on a secret black list and bans you from exercising a right that you otherwise have, what are the procedures it is obligated to provide?”

Currently, the government claims its “Glomar policy of refusing to confirm or any information” is “adequate.” However, the ACLU believes all of the government’s arguments in support of this secret blacklist fail.

“In context after context, courts have held that Americans must have some notice and some hearing before they are deprived of their liberties,” Shamsi declared. “That very basic fundamental position is what we are seeking to vindicate here, which is that once people have been put on the No-Fly list by the government they have a right to a notice of the fact that they are on the list, a statement of reasons why they are on the list and a hearing to contest their placement and to have the opportunity to get off the list.”

While in numerous cases challenging national security policies or seeking to hold individuals accountable for violating persons’ rights, the government has typically invoked state secrets, that has not occurred with this lawsuit. However, according to Shamsi, the government has maintained “its policy of keeping this information secret is perfectly within the government’s right.”

“The possiblity that some sensitive or classified national security information might be involved doesn’t mean that a hearing and a meaningful process should be foreclosed entirely because there are numerous situations in national security cases where courts have held that both notice and a hearing are constitutionally required, including for people captured on the battlefield on Afghanistan or foreign or domestic organizations that the government seeks to designate as terrorist,” Shamsi explained.

Instead of struggling with overcoming the state secrets privilege, the ACLU had to overcome a government challenge over jurisdiction. It claimed the Transportation Security Administration (TSA), which handles the redress process for individuals on the No-Fly list, should have been sued and not the FBI and Terrorist Screening Center (TSC). A challenge went up to the Ninth Circuit Court of Appeals, which rule in July of last year that the lawsuit could go forward against the FBI and TSC.

“All too often the government has sought to and succeeded in having challenges to national security policies thrown out on jurisdictional grounds,” Shamsi said. But the government was unable to win and now there exists a rare opportunity for the ACLU to challenge a major national security policy on the merits. That means a judge could ultimately issue a ruling that addresses whether the No-Fly list violates the Fifth Amendment or not.

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.

Nusrat Choudhary and Shamsi, in a blog post for the ACLU, note the government sweepingly contends the “Constitution has nothing to say about the adequacy and fairness of the procedures the government provides Americans to challenge their inclusion on the No Fly List because ‘alternatives’ to flying are available. Choudhary and Shamsi counter, “Not only does the list ban Americans from the skies, it even bars them from travel on boats. As a result, two of our clients have been effectively banned from traveling from the United States to be with their families in Ireland and Yemen.”

The Supreme Court acknowledged in Kent v. Dulles in 1958, in a case involving a “challenge to the Secretary of State’s refusal to issue a passport to an applicant due to his links to left-wing political groups,” that, “Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. Travel abroad, like travel within the country, may be necessary for a livelihood. It may be as close to the heart of the individual as the choice of what he eats, or wears, or read.”

According to the brief, “TSC shares the list with foreign governments.” Therefore, “No-Fly List placement also threatens to prevent citizens from travelling on flights that do not cross US airspace.”

In February 2012, 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.

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.

Shamsi concludes, “Think about how truly significant the government’s arguments are here. They’re saying that US citizens may be placed on a secret government watch list and denied notice of whether they are on the list or not, any evidentiary basis for being put on the list and any meaningful hearing that would allow them to challenge their placement and get off the list.”

This is why the challenge by the ACLU is so critical. Similar to how the Attorney General Eric Holder and others in the administration of President Barack Obama have sought to redefine the meaning of due process to justify the targeting and killing of “terror suspects,” the government has sought to redefine the nature of due process that is owed to citizens placed on the secret No-Fly list. Simply put, the government does not believe it would typically put anyone on the list that did not deserve to be put on it and it believes that banning people from travel to protect national security is a matter best handled by officials in an the Executive Branch and not a judge in court.

It is an orientation that is a gross perversion of justice and the law, which makes possible unconstitutional procedures, that perpetuate injustice without any way for a person to challenge government power at all.