Judge Finds ‘No-Fly’|List Unconstitutional

PORTLAND, Ore. (CN) - A federal judge on Tuesday found unconstitutional the methods by which the federal government places U.S. citizens and legal permanent residents on a "no fly" list without letting them see the evidence against them, or letting them contest it.

U.S. District Judge Anna Brown issued the 65-page ruling in Ayman Latif et al. v Eric H. Holder Jr.

"Plaintiffs are thirteen United States citizens who were denied boarding on flights over United States airspace after January 1, 2009, and who believe they are on the United States government's No-Fly List," Brown wrote. "Airline representatives, FBI agents, or other government officials told some plaintiffs that they are on the No-Fly List.

"Each plaintiff filed DHS TRIP [Department of Homeland Security Traveler Redress Inquiry Program] complaints after being denied boarding and each received a determination letter that does not confirm or deny any plaintiff's name is on any terrorist watch list nor provide a reason for any plaintiff to be included in the TSDB [Terrorist Screening Database] or on the No-Fly List.

"Many of these plaintiffs cannot travel overseas by any mode other than air because such journeys by boat or by land would be cost-prohibitive, would be time-consuming to a degree that plaintiffs could not take the necessary time off from work, or would put plaintiffs at risk of interrogation and detention by foreign authorities. In addition, some plaintiffs are not physically well enough to endure such infeasible modes of travel."

Lead plaintiff Latif, a Marine Corps veteran, was not allowed to board a flight from Cairo to Madrid in April 2010. FBI agents told him he was on the no-fly list. "Because he was unable to board a flight to the United States, Latif's United States veteran disability benefits were reduced from $899.00 per month to zero as the result of being unable to attend the scheduled evaluations required to keep his benefits," Brown wrote.

He was granted a "one-time waiver" to return to the United States but cannot fly again.

Brown disagreed with the government's claim that "all modes of transportation must be foreclosed before any infringement of an individual's due-process right to international travel is triggered." (Emphasis in original.)

She also noted that the air-travel ban "exposed some plaintiffs to extensive detention and interrogation at the hands of foreign authorities."

"The court concludes on this record that plaintiffs have constitutionally-protected liberty interests in traveling internationally by air, which are significantly affected by being placed on the No-Fly List," Brown added.

There is nevertheless a "more fundamental deficiency" with the DHS TRIP process, according to the ruling.

"As noted, the reasonable suspicion standard used to accept nominations to the TSDB is a low evidentiary threshold," Brown wrote. "This low standard is particularly significant in light of defendants' refusal to reveal whether travelers who have been denied boarding and who submit DHS TRIP inquiries are on the No-Fly List and, if they are on the List, to provide the travelers with reasons for their inclusion on the list. ...

"Accordingly, on this record the court concludes the DHS TRIP redress process, including the judicial review of DHS TRIP determinations, contains a high risk of erroneous deprivation of plaintiffs' constitutionally-protected interests."

The judge added: "Defendants' failure to provide any notice of the reasons for plaintiffs' placement on the No-Fly List is especially important in light of the low evidentiary standard required to place an individual in the TSDB in the first place.

"When only an ex parte showing of reasonable suspicion supported by 'articulable facts taken together with rational inferences' is necessary to place an individual in the TSDB, it is certainly possible, and probably likely, that 'simple factual errors' with 'potentially easy, ready, and persuasive explanations' could go uncorrected. Thus, without proper notice and an opportunity to be heard, an individual could be doomed to indefinite placement on the No-Fly List. Moreover, there is nothing in the DHS TRIP administrative or judicial-review procedures that remedies this fundamental deficiency. The procedures afforded to plaintiffs through the DHS TRIP process are wholly ineffective and, therefore, fall short of the 'elementary and fundamental requirement of due process' to be afforded 'notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present objections.'

"Accordingly, on this record the court concludes the absence of any meaningful procedures to afford plaintiffs the opportunity to contest their placement on the No-Fly List violates plaintiffs' rights to procedural due process."

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