People can land on no-fly lists without notice or sufficient opportunity for appeal, but there are some signs that this could be changing soon.
LOS ANGELES — Ibrahim “Abe” Mashal could be excused for feeling like a character in a Kafka story.
In April 2010, the former U.S. Marine from St. Charles, Ill., was denied boarding on a flight from Spokane, Wash., to Chicago. The ticketing agent told him he was on the “no-fly list” that is part of the U.S. government’s anti-terror arsenal.
After his unexpected grounding, Mashal, who now works as a dog trainer and had gone to Spokane on business, filed a complaint with the Department of Homeland Security’s Traveler Redress Inquiry Program (TRIP). The letter he received in response neither confirmed nor denied the existence of a no-fly list that included him or provided an explanation for why he apparently was on the list.
Mashal is still unable to fly. This has caused him to lose clients and miss his sister-in-law’s graduation, the wedding of a close friend and fundraising events for the nonprofit he founded.
Right to due process
But relief may be on the way. In August, an Oregon judge ruled that Mashal and 12 other people, including the religious leader of the state’s largest mosque, had “a constitutionally-protected liberty interest in traveling internationally by air, which is affected by being placed on the no-fly list” and that cannot be taken away without a fair process.
The American Civil Liberties Union had filed the suit against the government in June 2010, alleging due-process violations and seeking, among other things, the removal of its clients from any database that prevents them from flying and an opportunity for them to contest their inclusion on any such list.
At a hearing on March 17, ACLU lawyer Hina Shamsi urged U.S. District Judge Anna G. Brown to take an additional legal step and rule that the current TRIP system for contesting placement on the no-fly list is inadequate under the Fifth Amendment.
“No court has ever held that when the government deprives a U.S. citizen of constitutionally-protected rights, due process is satisfied by a secret, [one-sided] review process in which the citizen is denied official notice of and the reasons for the constitutional deprivation, and a hearing to confront and rebut the government’s accusations,” the ACLU argued in a brief.
The government contends it has a “paramount interest in ensuring that [the FBI’s Terrorist Screening Database] information can be broadly shared across the government to maximize the nation’s security, without fear that such information will be disclosed whenever anyone cannot travel as he or she might choose.”
But the complaints about one of the most controversial post-9/11 security programs appear to be gaining some traction in the courts. A Virginia judge found in January that a challenge to the no-fly list brought by Gulet Mohamed, a U.S. citizen who alleges he has been unable to return to the United States from Kuwait, raised “substantial constitutional issues.”
“It’s Kafkaesque that people are denied one of modern life’s attributes — the ability to travel by air on commercial planes — with no meaningful process to clear their names,” Shamsi told MintPress News in an interview.
Before Sept. 11, 2001, according to documents obtained by the ACLU, the government had identified 16 people who presented a known or suspected threat to aviation as “no transport.” By December 2002, the Transportation Security Administration had a no-fly list of 594 people. An official with the National Counter-Terrorism Center told Congress in 2010 that U.S. terrorism analysts receive, on average, about 10,000 names daily for examination and possible inclusion on watchlists.
The NCTC filters individuals with potential international terrorist ties onto a database called the Terrorist Identities Datamart Environment, from which some names are added to the FBI’s Terrorist Screening Database. According to some estimates, there are 400,000 names in the TSDB. How names end up on the no-fly list is unclear.
“The reality is no one knows how many people are on the list and what the standard for inclusion is,” Shamsi said. “We do know that people are on the list based on inaccurate information and that they are denied due process.”
The government has said that someone is put on the list if that person meets “certain substantive derogatory criteria establishing that the individual may be a known or suspected terrorist.” Whether those criteria are satisfied “is generally based on whether there is reasonable suspicion to believe that a person is a known or suspected terrorist.”
Mohamed, a resident of Alexandria, Va., was barred from boarding a plane home in January 2011, forcing him to stay in Kuwait, where he had gone to study Arabic. He sued over his placement on the no-fly list, alleging it violated his constitutional right to re-enter the U.S.
In denying the government’s motion to dismiss the case, U.S. District Judge Anthony J. Trenga noted in his Jan. 22 ruling that it presented the fundamental issue of “how to adequately protect our population from terrorist threats while remaining faithful to the basic liberties that define the society we seek to preserve.”
Whether someone is a “suspected terrorist,” he said, “appears to be based to a large extent on subjective judgments” and it was “not difficult to imagine completely innocent conduct serving as the starting point for a string of subjective, speculative inferences that result in a person’s inclusion on the no-fly list.”
“For example, is the academic study of terrorism or the investigative reporting of terrorist activities ‘related to terrorism and terrorist activities?’” Trenga asked.
Mohamed’s attorney, Gadeir Abbas of the Council on American-Islamic Relations, said the case, if ultimately successful, “would establish a process which all Americans could utilize to challenge their placement on the no-fly list and rebut the evidence the government relied upon to place them there.”
“Challenges to the federal government’s use of secret watchlists are critical to the civil liberties of all Americans,” he told MintPress News. “While … we believe this phenomenon predominantly affects U.S. citizens who are Muslims, if the federal government’s use of watchlists goes unchallenged, any U.S. citizen may find him or herself on a list.”
“Ongoing circle of secrecy”
The plaintiffs in the Oregon case include not only Mashal and religious leader Sheikh Mohamed Kariye, but also a U.S. Army veteran who had to spend 12 days traveling overland after he was not allowed to board a flight from Colombia to Miami and a U.S. Air Force veteran who has been separated for nearly four years from his wife in Ireland, in part because he is unable to leave the U.S.
The case known as Latif v. Holder does not challenge the procedure for initially including any of the plaintiffs on the no-fly list. “We are arguing that their inclusion without any meaningful opportunity for review violates the Fifth Amendment guarantee of procedural due process,” Shamsi explained.
Specifically, the plaintiffs say, they are entitled to a “post-deprivation notice” giving the government’s reasons for putting them on the list in enough detail that they can present a defense and a post-deprivation hearing at which they can meaningfully contest their inclusion.
The government has acknowledged that the current TRIP process provides neither notice nor a hearing but argues that “quality controls” are in effect to monitor the contents of the TSDB and the names on the no-fly list and that the rights of people dissatisfied with the results of a TRIP review are protected because they can seek judicial review by an appeals court.
In a 2009 audit report, however, the Department of Justice’s Office of Inspector General found the FBI failed to timely remove watchlist records in 72 percent of cases where it was necessary, modify watchlist records in 67 percent of cases where necessary, and remove terrorism case classifications in 35 percent of cases where necessary.
As far as judicial review, the ACLU questions how that can serve any meaningful purpose when its clients “do not know what to appeal, whether to appeal, or how best to advocate for themselves on appeal.” Even if an appeals court finds something wrong, moreover, the judges have no power to remove someone from the no-fly list — they can only send the matter back to the government for reconsideration.
“[T]he entire process could thus proceed in an ongoing circle of secrecy from which plaintiffs would be hard-pressed to emerge,” the ACLU said.
The plaintiffs won a partial victory in August when Judge Brown ruled that the government had deprived them of a “protected liberty interest.” But she deferred a decision on their due-process claims because the “current record in this case is not sufficiently developed as to the judicial-review process.”
At the March 17 hearing, the Portland Oregonian reported, Brown “sharply questioned” the government’s lawyer, noting that flaws or problems with the no-fly list might not become apparent in a judicial review where the person contesting inclusion on the list has no ability to challenge the government.
The judge also expressed doubt that refusing to confirm the plaintiffs’ status — even after they’ve been publicly barred from boarding a plane — could jeopardize national security.
“The secret’s not a secret at that point,” Brown said.
Shamsi suggested to the judge that the government could give people an opportunity to challenge their listing by providing unclassified summaries of the information used to put them on the roster.
“This comes down to the government asking all of us to trust it,” she said.
Brown did not indicate when she would issue her ruling, but, after nearly four years in limbo, Abe Mashal may finally be nearing the day he flies again.