The ACLU brought a case on behalf of: Ayman Latif, a US citizen and disabled Marine veteran who was prohibited from flying to the US; Samir Mohamed Ahmed Mohamed, a US citizen who was not allowed to fly home to the US after he visited family in Yemen; Ibrahim Mashal, a US citizen and US Marine Corps veteran who is a dog trainer and was prohibited from flying; as well as ten others. Neither of the plaintiffs were given notice or details as to why they were placed on the No-Fly List.
Judge Anna J. Brown, who was appointed to the US District Court for the District of Oregon by President Bill Clinton, agreed with the ACLU that US citizens were entitled to some kind of notice.
“Each plaintiff submitted applications for redress through the Department of Homeland Security Traveler Redress Inquiry Program (DHS TRIP),” Brown wrote in her decision [PDF]. “Despite Plaintiffs’ requests to officials and agencies for explanations as to why they were not permitted to board flights, explanations have not been provided and plaintiffs do not know whether they will be permitted to fly in the future.”
The plaintiffs have no idea what information was used against them and have been given no right to comment on any of the evidence the government claims to have, Brown noted.
The government’s failure “to provide any notice of the reasons for plaintiffs’ placement on the No-Fly List is especially important in light of the low evidentiary standard required to place an individual in the [Terrorist Screening Database] in the first place,” she further argued. “When only an ex parte [single party] showing of reasonable suspicion supported by ‘articulable facts taken together with rational inferences’ is necessary to place an individual in the TSDB, it is certainly possible, and probably likely, that ‘simple factual errors’ with ‘potentially easy, ready, and persuasive explanations’ could go uncorrected.”
Officials in President Barack Obama’s administration had argued that “all modes of transportation must be foreclosed before any infringement of an individual’s due process right to international travel is triggered.” The court wholly rejected this argument and concluded on the record that “plaintiffs have constitutionally-protected liberty interests in traveling internationally by air, which are significantly affected by being placed on the No-Fly List.”
Sheikh Mohamed Abdirahman Kariye, who is the imam of Portland’s largest Mosque and one of the plaintiffs in the case, declared, “Finally, I will be able to challenge whatever incorrect information the government has been using to stigmatize me and keep me from flying.”
Kariye continued, “I have been prevented by the government from traveling to visit my family members and fulfill religious obligations for years, and it has had a devastating impact on all of us. After all this time, I look forward to a fair process that allows me to clear my name in court.”
ACLU National Security Project Director Hina Shamsi, who was one of the attorneys who argued the case, reacted, “For years, in the name of national security the government has argued for blanket secrecy and judicial deference to its profoundly unfair No Fly List procedures, and those arguments have now been resoundingly rejected by the court.”
“Our clients will finally get the due process to which they are entitled under the Constitution. This excellent decision also benefits other people wrongly stuck on the No Fly List, with the promise of a way out from a Kafkaesque bureaucracy causing them no end of grief and hardship. We hope this serves as a wake-up call for the government to fix its broken watchlist system, which has swept up so many innocent people,” Shamsi stated.
The court ruled that Attorney General Eric Holder, FBI Director James Comey and other government officials are required to provide some notice to plaintiffs on their “status on the No-Fly List and the reasons for placement on that List.” The plaintiffs are also to be permitted to “submit evidence relevant to the reasons for their respective inclusions on the No-Fly List.” They also “must include any responsive evidence that Plaintiffs submit in the record to be considered at
both the administrative and judicial stages of review.”
Brown indicated it may be acceptable for the government to provide plaintiffs with “unclassified summaries” of why they were put on the No-Fly List or “disclose the classified reasons to properly-cleared” defense counsel.
Furthermore, the DHS TRIP process was found to violate the Administrative Procedure Act, which allows the courts to review the actions of an agency. Congress intended for the Executive Branch to “establish a procedure to enable airline passengers who are delayed or prohibited from boarding a flight because the advanced passenger prescreening system determine that they might pose a security threat, to appeal such a determination and correct information contained in the system.”
“The DHS TRIP process does not provide a meaningful mechanism for travelers who have been denied boarding to correct erroneous information in the government’s terrorism databases,” Brown wrote. “A traveler who has not been given any indication of the information that may be in the record does not have any way to correct that information. As a result, the DHS TRIP process ‘entirely fail[s] to consider an important aspect’ of Congress’s instructions with respect to travelers denied boarding because they are on the No-Fly List.”
A district court previously had ruled that a Malaysian, Dr. Rahinah Ibrahim, had her due process rights violated when the government made an error and improperly placed her on the No-Fly List. But that decision had only applied to her.
In this case, the court acknowledged that all US citizens were entitled to “procedural due process” lacking in the government’s operation of the No-Fly List.
Notably, Brown acknowledged, “The ban on air travel has exposed some plaintiffs to extensive detention and interrogation at the hands of foreign authorities. With perhaps the exception of travel to a small number of countries in North and Central America, a prohibition on flying turns routine international travel into an odyssey that imposes significant logistical, economic, and physical demands on travelers.”
Government officials had argued that plaintiffs based their “claim on the flawed assumption that they have a constitutional right to travel by plane to, from and within the United States.” They also argued the “government’s current procedures for including individuals on the No-Fly List protect against erroneous or unnecessary infringements of liberty.”
“There is a sufficient process to review and correct any errors in the government’s actions and therefore satisfies any due process requirements,” the government maintained. “The redress process necessarily requires a balance between the interests of travelers in being able to challenge perceived impediments to their ability to travel and the government’s compelling need to ensure the security of air travel and the protection of information giving rise to placement on the No Fly List.”
“Due process does not require the government to put national security at risk by providing the process that Plaintiffs demand.”
Fortunately, for US citizens who have been improperly placed on the No-Fly List, those arguments were rejected and a major decision in defense of due process rights and against unchecked executive power was issued by the court.
Photo by Matt under Creative Commons license