The Most Absurd Part of the No-Fly List Has Been Declared Unconstitutional by a Judge

Photo of Denver International Airport security checkpoint by Flickr user dan paluska

On Tuesday afternoon, the American Civil Liberties Union (ACLU) announced a rare victory in the ongoing legal fight against the authoritarian excesses of the war on terror: A federal judge in Portland, Oregon, ruled that the insanely convoluted process by which people can get off of the no-fly list is unconstitutional and “wholly ineffective” to boot.

The no-fly list (which is part of a larger thing called the Terrorist Screening Database, or TSDB) is a way for the government to keep off of commercial flights those dastardly, probably foreign fiends whom the FBI’s Terrorist Screening Center (TSC) determines to be “known or suspected to be, or has been engaged in conduct constituting, in preparation for, in aid of or related to, terrorism or terrorist activities." There are a lot of these people, according to the government—as many as 21,000 in 2012, including 500 US citizens—and if you are on the list you won’t be able to fly in or out of the United States on a commercial airline.

There are all sorts of civil-liberties reasons to despise the no-fly list, the most obvious one being that there’s no way to find out if you’re on it until you’re told that you can’t fly—and even then you might be on some other kind of secret banning-you-from-travel list. If you suspect you are on the list you may not know why and you can’t find out, though it could be a case of an FBI agent checking the wrong box on a form. Your only option is to write the Department of Homeland Security to say, essentially, “I think I might be on the no-fly list. If I am, can I please not be on it anymore?” The bureaucratic terrorist-fighting wheels then turn as the government agencies that may or may not have you under surveillance confer and figure out if they have the wrong box checked somewhere. Then you’re told that your review has been completed—except you still don’t know whether you’re on the watch list. You can have a court look into the matter if you like, but even then you’ll be entirely in the dark as to what your status is.

“At no point during the judicial-review process does the government provide the petitioner with confirmation as to whether the petitioner is on the No-Fly List, set out the reasons for including petitioner's name on the List, or identify any information or evidence relied on to maintain the petitioner's name on the List,” US District Judge Anna Brown noted in her ruling.

The absurdity implicit in all of this—are there really 20,000 terrorists out there so dangerous that they can’t fly on an international flight, and does every scrap of information about them have to be so closely guarded?—led the ACLU to sue the government on behalf of 13 US citizens, including four veterans, who are on the no-fly list. (Or at least they think they're on the no-fly list, since it’s usually impossible to know for sure, though some of them were told they were on the list by airline employees or the FBI.) And Brown agreed with the ACLU that the government was essentially denying the plaintiffs’ right to international travel without due process, a violation of the Fifth Amendment.

The government went into its usual routine when any of its agencies’ secretive security and surveillance practices are questioned: It claimed that a more transparent appeal process would threaten national security and force it to reveal classified information. In other words: Trust us, let us do what we want, or else the terrorists will win.

That argument works sometimes—yesterday another judge in the same courthouse ruled that it’s legal to wiretap a US citizen without a warrant in certain circumstances—but it didn’t hold up here, possibly because of the hardships suffered by the no-fly listers who sued the government. One, Steve Washburn, wasn’t allowed to return home to New Mexico from Ireland in 2010 and eventually had to fly to Mexico and cross the border to the US on foot. Another, Ibraheim Mashal, is a Marine veteran who wasn’t even allowed to board domestic flights and has missed family events and lost clients for his dog-training business as a result.

The judge noted that the government agencies involved did have a legitimate interest in defending the country from terrorism, but that has to be balanced against the rights of the people caught up in the web of the War on Terror with no way to disentangle themselves, and the plaintiffs were clearly mistreated by the system.

“Without proper notice and an opportunity to be heard, an individual could be doomed to indefinite placement on the No-Fly List,” wrote Brown.

The judge didn’t suggest specific changes that should be made but told the government that it would need to come up with reforms to sort out these Fifth Amendment concerns. Though the Feds can appeal Brown’s decision, they will likely have to provide more information to people who want to know why they can’t get on planes. That’s good news for the activists who have been pushing back against these draconian policies for years, and better news for the plaintiffs, who will finally be able to see what evidence their government has against them.

“Finally I will be able to challenge whatever incorrect information the government has been using to stigmatize me and keep me from flying,” Sheik Mohammed Abdirahman Kariye, a plaintiff who lives in Portland, Oregon, said in a statement provided by the ACLU. “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.”

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