Why the no-fly list was declared unconstitutional

Imagine you’re in an airport en route to visit family abroad when suddenly you’re surrounded. Then you are detained and interrogated. You not only miss your scheduled flight, but can’t get on any other flight. Not to see your family. Not to travel for work. Not for any reason. And nobody will tell you why. It’s as though you’ve been blacklisted.

FILE - This May 11, 2012 file photo, Portland Imam Mohamed Sheikh Abdirahman Kariye, who is one of 15 men who say their rights were violated because they are on the U.S. government's no-fly list, leaves the United Sates Court of Appeals following oral arguments on the ACLU No Fly List challenge, in Portland, Ore. A federal judge has ruled Tuesday, June 24, 2014, that the U.S. government violated the rights of 13 people on its no-fly list by depriving them of their constitutional right to travel, and gave them no adequate way to challenge their placement on the list. (AP Photo/Rick Bowmer, File)
Portland Imam Mohamed Sheikh Abdirahman Kariye is one of 15 men who say their rights were violated because they are on the U.S. government’s no-fly list.(Rick Bowmer/AP)

That was the experience of 13 American Muslims – including four military veterans – who challenged the government’s no-fly list imposed after 911 to keep terrorists out of U.S. airspace. None of them have ever been charged with terrorism-related offenses. They were barred from boarding flights, but nobody would tell them if they were on the list and, if so, why.

On Tuesday, a federal judge in Oregon ruled the government’s no-fly list is unconstitutional because Americans on it have no meaningful opportunity to contest their inclusion. Here’s the opinion.

The judge didn’t say the government has to get rid of the list. But it does have to come up with a better way for people on the list to challenge the fact that they are on it. The government must also disclose to those on the list any unclassified information used to justify their inclusion.

Much of the information about people on the list is classified. U.S. District Court Judge Anna Brown said the government should summarize that information or disclose it to an attorney with the proper security clearance. Brown relied heavily on a 9th circuit case involving an Islamic charity in her recommendations for overhauling the procedures for challenging placement on the list.

Judge Brown said in her opinion that procedures for finding out whether you are on the list and why were “wholly ineffective” and created a “high risk of erroneous deprivation” of travelers’ rights. That assertion was borne out in the experience of a Malaysian university professor, Rahinah Ibrahim, who was cleared of terrorism charges in January after she was mistakenly put on the no-fly list in 2005 due to an error made by a San Francisco TSA agent. Though the government had argued the risk someone would be accidentally place on the list is low, the judge was more convinced by that case, and two government agency reports showing other errors were made and never corrected.

Last year, the FBI said there are roughly 20,000 names, including 500 U.S. citizens, on the list.

Though it is shared with ship captains and 22 other countries, according to the Associated Press, the list is a well-kept government secret. The FBI has said secrecy is necessary to protect sensitive investigations. The list has been one of the government most controversial tools for combating terrorism because critics say it treats innocent people as terror suspects without presenting evidence against them.

In her opinion, Brown recognized the government’s compelling interest in combatting terrorism. However, well-established case law says even compelling government interests must be balanced against citizens’ constitutional rights. The issues with the no-fly list aren’t exactly new – the opinion cites several post-911 cases where that balancing act involved national security interests.

The Supreme Court has recognized a constitutionally-protected interest in “a person’s good name, reputation, honor, or integrity” – which the group of 13 said was damaged by their inclusion on the list. In this case, the government didn’t even contest the fact that people on the list suffer a stigma as a result of being on it.

The right to travel is also a recognized constitutional interest, but the government argued commercial airline travel doesn’t fit under that umbrella and that people on the no-fly list can use other modes of transportation.

Brown wasn’t convinced. Here she explains why  the freedom to travel internationally fits within the Constitution’s promise of “life, liberty and pursuit of happiness,” specifically the liberty part:

One need not look beyond the hardships suffered by Plaintiffs to understand the significance of the deprivation of the right to travel internationally. Due to the major burden imposed by inclusion on the No-Fly List, Plaintiffs have suffered significantly including long-term separation from spouses and children; the inability to access desired medical and prenatal care; the inability to pursue an education of their choosing; the inability to participate in important religious rites; loss of employment opportunities; loss of government entitlements; the inability to visit family; and the inability to attend important personal and family events such as graduations, weddings, and funerals. The Court concludes international travel is not a mere convenience or luxury in this modern world. Indeed, for many international travel is a necessary aspect of liberties sacred to members of a free society.

“This should serve as wakeup call to the government,” American Civil Liberties Union attorney Hina Shamsi said in a statement. “This decision also benefits other people wrongly stuck on the no-fly list because it affords them [an opportunity to challenge] a Kafkaesque bureaucracy.”

 

Gail Sullivan covers business for the Morning Mix blog.
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Gail Sullivan · June 25