6.25.2014

Court Says The Process For Getting Off The No Fly List Is Unconstitutional

We've had a few stories recently about legal challenges to the No Fly List in the United States. Just a couple months ago, for the first time, the US government was ordered to tell someone they were not on the No Fly List, though that person was still kept in various other terrorist watch lists/databases. Soon after that, we wrote about a new legal challenge to the No Fly List, involving some men who were basically harassed, with the FBI threatening to put them on the No Fly List if they didn't become informants.



However, in a very big ruling today, a district court judge in Oregon has basically found the process of getting off the No Fly List unconstitutional. According to the ACLU, who handled the case on behalf of 13 Americans who were on the list:
The judge ordered the government to create a new process that remedies these shortcomings, calling the current process “wholly ineffective” and a violation of the Fifth Amendment's guarantee of due process. The ruling also granted a key request in the lawsuit, ordering the government to tell the ACLU’s clients why they are on the No Fly List and give them the opportunity to challenge their inclusion on the list before the judge.

The full ruling is worth reading as it goes into significant detail and analysis, including digging into the Rahinah Ibrahim case we mentioned above. In the end, the court is pretty clear that putting someone on the No Fly List clearly deprives them of their rights:
In summary, on this record the Court concludes the DHS TRIP process presently carries with it a high risk of erroneous deprivation in light of the low evidentiary standard required for placement on the No-Fly List together with the lack of a meaningful opportunity for individuals on the No-Fly List to provide exculpatory evidence in an effort to be taken off of the List.

Of particular importance is the fact that people placed on the list are not told about it, let alone told why they've been put on the list. And when combined with the "low evidentiary standard" mentioned above, the court sees a problem:
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.

Given all that, the court has significant problems with the overall nature of the program:
As discussed herein at length, the DHS TRIP process does not provide a meaningful mechanism for travelers who have been denied boarding to correct erroneous information in the government's terrorism databases. A traveler who has not been given any indication of the information that may be in the record does not have any way to correct that information. As a result, the DHS TRIP process "entirely fail[s] to consider an important aspect" of Congress's instructions with respect to travelers denied boarding because they are on the No-Fly List.

The Court doesn't toss out the program, but orders DHS to "remedy" the situation by coming up with a new process to guarantee that people on the No Fly List have due process to get off the list. There still are reasonable questions as to how such a general list could be legal at all in the first place, but this ruling would seem to take a big step towards at least allowing a real process to be in place to get people off the list. Of course, it's fairly likely that the US government will appeal this ruling, but at least this is a small bit of good news in the meantime.



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