No-fly list decision on secrecy could have broad implications
By HELEN JUNG | The Oregonian, Portland, Ore. | Published: June 25, 2014
PORTLAND, Ore. — Thirteen people believed to be on the federal no-fly list have a constitutional right to hear why the government believes they are a threat to air travel, a judge ruled Tuesday.
In a 65-page opinion, U.S. District Judge Anna Brown of Portland wrote that the current no-fly appeals procedure is "wholly ineffective" and violates their right to due process.
She ordered the government to come up with a new way for the 12 men and one woman to contest the ban. The government should give them basic information, including confirming whether they are on the list and why, she ordered.
The plaintiffs — all U.S. citizens or permanent residents — also must be allowed to submit evidence to contest the government's suspicions for banning them from flying in or through U.S. airspace, the judge said.
While the decision directly affects only the 13 people who filed the lawsuit, Brown's opinion could have far-reaching impacts, said Hina Shamsi, one of their lawyers.
It should serve as a "wake-up call" for government to revise its no-fly listing policies that have ensnared too many law-abiding citizens, she said.
"This decision identifies how the system is broken," said Shamsi, National Security Project director for the ACLU, which argued the case. "It's now up to the administration or Congress to fix it."
The ruling marks a big win in the 4-year-old case for the ACLU and the plaintiffs, who have all been banned from boarding planes and have appealed through the U.S. Department of Homeland Security's Traveler Redress Inquiry Program.
The plaintiffs live throughout the U.S. and include Sheikh Mohamed Kariye, the religious leader of Portland's largest mosque, Masjed As-Saber. Kariye was refused boarding in 2010 and has since been unable to travel overseas to visit his daughter or accompany his mother on a religious pilgrimage.
Although some of them have been told by airline officials or government agents informally that they are on the no-fly list, the government has never confirmed their status. Instead, they can find out if they are allowed to fly only by buying a ticket and trying to board, according to filings.
In her ruling, Brown wrote that the risk of mistakenly putting someone on the no-fly list is high, noting that the government requires only "reasonable suspicion" – more than a hunch but less than probable cause – to ban someone from air travel. That low threshold, coupled with an appeals process that provides little information, could doom a traveler indefinitely, she said.
"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," she wrote, in concluding that the no-fly appeals process also violates the federal Administrative Procedure Act.
Brown ordered the government and plaintiffs to file a report by July 14 with proposals for next steps.
She noted that the government has a compelling interest in protecting national security and keeping classified information secret. But the government can prepare unclassified summaries of the reasons for the plaintiffs' inclusion on the no-fly list, or share the classified information with their attorneys who have security clearance for such sensitive data, she said.
The U.S. Department of Justice in an email said it is reviewing the decision.
The judge turned back arguments from the government that it regularly reviews and corrects erroneous information in its Terrorist Screening Database, which is maintained by an arm of the FBI. The no-fly list is a subset of that database and is forwarded to the Transportation Security Administration for use in blocking travelers.
Errors still happen, Brown wrote, and go unnoticed for years. She cited a recent decision in a Northern California case in which Rahinah Ibrahim was wrongly added to the no-fly list. Ibrahim was taken off the roster shortly after, but her name remained in the larger terrorist database for nine years before the error was discovered, Brown wrote.
She also traced other recent terrorism-related court findings of due process violations in cases where the government had provided more information than that offered in no-fly administrative appeals.
The inability to fly is not just an inconvenience, Brown wrote.
"Due to the major burden imposed by inclusion on the No-Fly List, Plaintiffs have suffered significantly including long-term separation from spouses and children; the inability to access desired medical and prenatal care; the inability to pursue an education of their choosing; the inability to participate in important religious rites; loss of employment opportunities; loss of government entitlements; the inability to visit family; and the inability to attend important personal and family events such as graduations, weddings, and funerals" she wrote. "Indeed, for many international travel is a necessary aspect of liberties sacred to members of a free society."
The decision is significant both for the plaintiffs who have challenged the no-fly list for four years as well as for the broader signal it sends, said Jeffrey Kahn, an associate law professor at Southern Methodist University. Kahn is also the author of Mrs. Shipley's Ghost: The Right to Travel and Terrorist Watchlists.
"The momentum is building" he said, noting the recent decision in the Ibrahim case cited by Brown and other court cases that challenge the validity of the no-fly list. Kahn served as an expert witness in the Ibrahim case for the plaintiff.
He compared the no-fly list of today with the U.S. State Department of about 65 years ago, when government officials feared a communist overthrow. "The same arguments, the same urgency, the same assertions of national security, and secrecy and 'trust us' were made then," he said. A single person, Ruth Shipley, held immense power to distribute, revoke and restrict passports — and international travel — while relying on arbitrary and secretive reasons for her decisions, he said.
But court decisions eventually forced the State Department to back off its practices, he said.
"At the end of the day, I think we're going to see the same unraveling," he said.
Tung Yin, a professor at Lewis and Clark Law School who has followed the case, said Brown determined the government should and could do more to avoid mistakenly taking away someone's right to travel by air.
Telling someone they are on the list and giving them the reasons, he said, "are things that the government could do quite easily that would not heavily burden the government and would have a significant impact on the accuracy."