No-Fly List Challenge Takes Off in 6th Circuit

CINCINNATI (CN) - A U.S. citizen on the "no-fly list" urged the 6th Circuit on Wednesday to revive his case based on the government's unconstitutional actions.

Saeb Mokdad, an American citizen from Lebanon, sued outgoing Attorney General Eric Holder and others last year in Detroit to discover why the Transportation Security Administration put him on the no-fly list.

Finding that Mokdad should have filed with an appeals court, however, U.S. District Judge Victoria Roberts dismissed the case.

Hoping to have the 6th Circuit revive his client's case, attorney Nabih Ayad urged a three-judge appellate panel to instead focus on the no-fly list's merits.

"Think [about] how outrageous this is," Ayad said at a hearing Wednesday. "A U.S. citizen is put on this list but is not told why."

Questioning whether Mokdad has lost his right to due process, Ayad emphasized that the United States is "a nation of immigrants."

"What kind of nation have we become?" he asked.

Undermining the due-process angle, Judge Ronald Lee Gilman pointed out that the relevant issue is which court has jurisdiction over the claims.

He said that Mokdad could "challenge the adequacy of the TSA process" through the appeals court.

Ayad responded by referring to the FBI's Terrorist Screening Center, claiming that "you cannot deal with the TSC without dealing with the TSA."

"We have not seen a case where someone is taken off the list without a federal action," Ayad said. "Only the TSC can remove a name from the list."

With Ayad saving a good portion of his time for rebuttal, U.S. attorney Joshua Waldman emphasized that a court of appeals is the proper venue for Mokdad's case.

Mokdad "must exhaust [his] administrative remedies ... exclusively through the court of appeals," Waldman said.

Judge Julia Smith Gibbons interjected to note that the "relief sought is only against the TSC."

Mokdad "really doesn't seek to invoke the process that takes the case to the court of appeals," she said.

Waldman and Gibbons' ensuing debate as to whether TSA or TSC controls the method of putting someone on the no-fly list only further muddied how the government agencies handle the process.

The attorney eventually concluded: "All parts of the government would follow an order [taking someone off the list] if it is properly filed through the court of appeals."

When Ayad returned to the constitutionality of the no fly list on rebuttal, he emphasized that the government "does not admit that you are on a list, or that there is even a list."

"I cannot think of a law that takes away someone's rights without allowing them to challenge it," Ayad said.

Calling Ayad's argument "a little strong," Judge Gilman noted that Waldman had said "the TSC is just a database."

Ayad concluded by calling that position "a very narrow-minded approach," and stressed that his client has a right to review the information that put him on the no-fly list in the first place.

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