Constitutional Challenge to No Fly List Upheld
(CN) - Government agencies must face claims that they wrongly placed a U.S. citizen on the No Fly list and had him tortured in a Kuwaiti prison, a federal judge ruled.
"A No Fly List designation transforms a person into a second class citizen, or worse," U.S. District Judge Anthony Tsenga said. "The issue, then, is whether and under what circumstances the government should have the ability to impose such a disability on an American citizen, who should make any such decision, according to what process, and by what standard of proof."
Gulet Mohamed, a 21-year-old U.S. citizen from Alexandria, Va., was allegedly detained two years in a Kuwaiti deportation prison where he was "tortured and beaten," and denied a flight back to the United States because the FBI placed his name on the No Fly List.
Mohamed says he was abducted in Kuwait when attempting to renew his visitor's visa so he could continue the Arabic lessons he had been taking there for over a year.
According to the complaint , Mohamed was "repeatedly beaten and tortured by his interrogators. Mr. Mohamed's interrogators struck him in the face with their hands regularly and in Mr. Mohamed's estimate more than a hundred times. The interrogators whipped his feet and other parts of his body with sticks. At one point, the interrogators threatened to run currents of electricity through Mr. Mohamed's genitals."
Kuwaiti officials allegedly told his family that they were "holding him at the behest of the United States government and are willing to release him since they have no interest in keeping him in custody."
When his family bought Mohamed a ticket to fly home, however, he was denied boarding because his name was on the No Fly List, according to the complaint.
An American attorney eventually arranged to have Mohamed return to the United States where he has not been criminally charged or otherwise detained.
Facing a motion to dismiss from the defendants, Tsenga began his analysis by acknowledging the considerations in play with a no fly list
"Today, we are at war with those who would, if possible, use a commercial aircraft as an instrument of mass murder," the 32-page opinion states. "There can be no doubt that the government has the right and obligation to identify, investigate and stop those who present such a threat; and for that purpose, the government must collect and act on intelligence information concerning possible terrorists, while protecting its sources and methods."
The No Fly List nevertheless profoundly impacts a citizen's basic freedoms, including the ability to visit friends and family without spending days or weeks to reach them. It limits one's professional opportunities, and the ability to travel for vacation or religious reasons, not to mention the grave stigma attached to the designation, according to the ruling.
In Mohamed's case, Tsenga found that the "the four to five-day delay that Mohamed experienced in his ability to reenter the United States did not unduly burden his right of reentry and therefore, as a matter of law, did not constitute a constitutional deprivation."
Mohamed certainly has a claim, however, that he may suffer future harm based on his inclusion on the No Fly List, the judge found.
"His continued inclusion on the No Fly List presumptively prevents him from departing the United States to travel abroad for a religious pilgrimage and to visit family members, and, were he able to leave the United States, from returning to the country through any practical means," the ruling states. "Thus, Mohamed complains of a violation of his right to exit and return based on the burden placed on his right to international travel, which is 'an important aspect of the citizen's 'liberty' guaranteed in the Due Process Clause of the Fifth Amendment.'"
The Department of Homeland Security has additionally not given Mohamed a way to challenge his placement on the No Fly List, nor informed him of the reasons for including his name.
"While the government no doubt has a significant and even compelling interest, an American citizen placed on the No Fly List has countervailing liberty interests and is entitled to a meaningful opportunity to challenge that placement," the judge said.
Last week, a federal judge ordered Homeland Security to clean-up its No Fly List after a Malaysian professor was mistakenly placed on the list.
The San Francisco-based judge found that "the government's administrative remedies fall short and do not supply sufficient due process."