No-Fly List Passengers Have the Right to Fly
(CN) - U.S. citizens who say they were mistakenly placed on the government's No Fly List have a "constitutionally protected interest in traveling internationally by air," a federal judge ruled.
Thirteen U.S. citizens, including four veterans, claimed in a federal lawsuit in Oregon that they were blocked from flying to or from the United States because of their placement on the FBI's No Fly List, intended for suspected terrorists.
One of the plaintiffs, a California resident, said FBI agents told him he could fly back to San Francisco from Yemen "if he would agree to tell them who the 'bad guys' were in Yemen and in San Francisco," according to the complaint.
The plaintiffs, most of whom have Middle Eastern names, said they have no meaningful way to challenge their restricted status, because government officials refuse to tell them why they were placed on the list.
They each filed administrative complaints that were routed to the government's Terrorist Screening Center. If it's a case of mistaken identity, the Department of Homeland Security is supposed to correct the traveler's records. In all cases, the travelers received a "determination letter" stating that the government completed its review without confirming or denying their inclusion on the list.
The plaintiffs said this process violates their substantive due-process rights and the Administrative Procedures Act.
U.S. District Judge Anna Brown in Portland initially dismissed the lawsuit, saying the Transportation Security Administration was a necessary party but could not be joined to the action. The 9th Circuit reversed in July 2012.
On remand, Brown said the plaintiffs "have a constitutionally protected liberty interest in traveling internationally by air, which is affected by being placed on the No Fly List."
She rejected the government's claim that the Constitution does not specifically protect anyone's right to travel by airplane.
"Although there are perhaps viable alternatives to flying for domestic travel within the continental United States such as traveling by car or train, the court disagrees with defendants' contention that international air travel is a mere convenience in light of the realities of our modern world," Brown wrote in her 38-page opinion.
She also agreed that placement on the No Fly List carries the stigma of being a suspected terrorist.
But the judge stopped short of saying the government violated the plaintiffs' right to fly. She said more information is needed to determine if the government's process of redressing complaints is sufficient in light of national security concerns.
The government had argued that it can't tell travelers whether or why they're on the list because doing so would force it to reveal classified information that could compromise national security.
In response, the plaintiffs pointed to a 2009 audit report by the Office of the Inspector General which found that the "FBI did not update or remove watch list records as required."
According to the report, the agency failed to timely remove records in 72 percent of cases where necessary, failed to modify watch-list records in 67 percent of cases and failed to remove terrorism classifications more than a third of the time.
Brown said the 9th Circuit noted "similarly troubling deficiencies" in its 2012 ruling for a Malaysian academic who claimed she was placed on the No Fly List by mistake.
"Tens of thousands of travelers have been misidentified because of misspellings and transcription errors in the nomination process, and because of computer algorithms that imperfectly match travelers against the names on the list," the federal appeals court wrote in that opinion.
Brown conceded that the letter sent to blacklisted travelers does not afford them standard due process.
"Plaintiffs have not been officially provided with any information about why they are not allowed to board commercial flights; they have not been officially informed whether they are on the No Fly List; if they are on the No Fly List, they have not been provided with an opportunity to contest their placement on the list; and they have not been provided with an in-person hearing," she wrote.
The question, Brown said, is whether the government's reason for secrecy - national security - justifies the curtailed review.
"The court does not yet have a sufficiently developed record to weigh the government's interests against the current review process," Brown wrote.
Until she has information, she deferred ruling on the plaintiffs' Administrative Procedures Act claims.