Sen. Edward Kennedy learned in 2004 that he was on the federal no-fly list. On five separate occasions, the senior statesman and last surviving brother of former President John F. Kennedy was flagged as a potential terrorist and denied boarding access. For thousands of Americans, Kennedy’s situation is all too familiar.
With little or no available recourse to address why they were placed on the list or how to get off, many innocent Americans have found themselves blacklisted, with the number of additions to the no-fly list exploding over the past three years.
In 2005 Rahinah Ibrahim, a visiting doctoral student from Malaysia, was detained, handcuffed and questioned for two hours at San Francisco International Airport. A month prior, the FBI visited her at Stanford University and asked if she had any connection with the Malaysian terrorist group Jemaah Islamiyah. Despite her denial, she was placed on the no-fly list.
But on Jan. 12 Ibrahim became the only person to ever successfully challenge her placement on a government watch list. In what that has been called a bureaucratic “mistake,” U.S. District Judge William Alsup has ordered the Department of Homeland Security to either remove her name from the list or prove that her name has already been removed. The no-fly list is a classified document not available for public inspection. The judge has set for the unsealing of a larger judicial order that would disclose Ibrahim’s presence on the list April 15.
Ibrahim sought no monetary damages. Only desiring to clear her name, Ibrahim’s case was argued pro bono by Elizabeth Marie Pipkin, who amassed $300,000 in court fees and $3.8 million in legal costs. Ibrahim is currently a professor in Malaysia and has been denied re-entry into the U.S., even to attend her own trial.
Increasingly, the federal government has used the no-fly list as a tool in the war on terror. As reported by the American Civil Liberties Union, Nagib Ali Ghaleb was denied boarding on his return trip to San Francisco from visiting his family in Yemen. After visiting the American embassy, trying to find a way home, Ghaleb was encouraged to submit to an FBI interview. The FBI agents offered Ghaleb immediate reentry if he would agree to tell the FBI who the “bad guys” were in Yemen and San Francisco. Under threat of arrest, the FBI agents demanded the names of the members of his mosque and Yemeni community back in San Francisco.
As the ACLU pointed out, the idea that the FBI would ask Ghaleb to be an informant suggests that the government did not actually suspect him of being a terrorist. The idea that this form of manipulation has developed under the no-fly list without a valid manner for those blacklisted to challenge or even confirm their existence on the list constitutes a grave violation of civil liberties.
“Once a plaintiff shows concrete, reviewable adverse government action has occurred and, as here, shows that the action resulted from an error by the government, then the plaintiff is entitled by due process to a post-deprivation remedy that requires the government to cleanse and/or correct its lists and records of the mistaken information and to certify under oath that such correction(s) have been made,” the abbreviated court order reads. “The government’s administrative remedies fall short of such relief and do not supply sufficient due process.”
Currently, Latif, et al. v. Holder, et al. — in which 10 American citizens and permanent residents, including four American military veterans , are suing the government for their inclusion on the no-fly list — is awaiting decision.
Per the court’s opinion on motions for a partial summary judgment, District Court Judge Anna Brown points out the inherent dangers of arbitrary use of the no-fly list.
“[The] realistic implications of being on the no-fly list are potentially far-reaching,”Brown ruled. “For example, TSC [the Terrorist Screening Center] shares watchlist information with 22 foreign governments and United States Customs and Boarder [sic] Protection makes recommendations to ship captains as to whether a passenger poses a risk to transportation security.”