Posted by on August 06, 2012 in Blog

Over two years ago attorneys with the ACLU filed suit on behalf of 15 clients, including 4 U.S. military veterans who had been erroneously placed on the government’s “No Fly List.” Each of the 15 learned that they had been labeled as terrorist threats only when they were stopped from boarding planes. The lawsuit on their behalf argues that placing citizens on the No Fly List without providing them any opportunity to confront and rebut the decision or any evidence against them is unconstitutional. Since filing the suit, it has been a struggle for the case to even get its day in court.

The government’s secretive “No Fly List” has become a symbol of civil liberties abuses and ineffectual counterterrorism policies in the post-9/11 era. In May 2009, the Inspector General of the Justice Department found that 35% of names on the No Fly List and other terror watch lists were either outdated or lacked any sort of predicate for their inclusion. Such bloated watch-lists actually hinder counterterrorism efforts, as they distract law enforcement officials from their mission and waste limited federal resources. Far more serious an issue than waste, however, is the unconstitutional lack of proper redress systems for those erroneously added to the list.

The Department of Homeland Security’s Inspector General has acknowledged that the Traveler Redress Inquiry Program (TRIP) is an ineffectual mess. There are no avenues for legal challenges to take any sort of adversarial action against one’s inclusion on a terror watch list. The existing redress program is administered by the TSA, which has no say on who is added to the No Fly List in the first place; those decisions are made by the FBI. Thus, affected persons can wait for months or even years while their grievance is sorted through by the TSA, only to find out that the FBI refuses to volunteer any information on their inclusion. The consequences of being mistakenly added to a terror watch list extend far beyond flying. Law enforcement routinely run names against the watch lists for routine traffic stops and other common procedures, so innocent individuals may be harassed even if they don’t attempt to fly. The lack of proper avenues for redress also allows the FBI to abuse the No Fly List and use it as a coercive threat. Many Arab Americans and American Muslims have reported being approached by FBI operatives, who threaten to include them on the no fly list in order to coerce them to become informants in their domestic spying operations.

The ACLU lawsuit was filed against the FBI and its sub-agency, the Terrorist Screening Center, which creates and controls the No Fly List. In May 2011, the district court in Portland dismissed the case for lack of jurisdiction, ruling that the suit should have been filed against the Transportation Security Administration, which administers the existing redress process for travelers denied boarding on planes. The ACLU’s clients did file redresses through the proper channels, only to be told that the TSA could “neither confirm nor deny” any information included in terror watch-lists like the No Fly List.

An appeal was filed with the 9th Circuit Court, challenging the District court’s ruling over jurisdiction. The government’s attorney made the astonishing argument that no court would be able to correct the wrongful placement of American citizens and permanent residents on the No Fly List. This argument is especially audacious given the fact that the DOJ’s own Inspector General has acknowledged that the list contains numerous innocent people.

The 9th Circuit overturned the district decision, so the ACLU’s suit against the FBI’s Terrorist Screening Center will finally get its day in court. The strongly worded decision from Judge Anna Brown agreed with the ACLU that the “TSC decides both whether travelers are placed on the List and whether they stay on it,” and it would therefore be “futile” to challenge the existing redress process administered by the TSA. Judge Brown had harsh words for the government’s case: “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?” The 9th Circuit’s decision is an important step in finally getting an answer to that straightforward question. 

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