ACLU mounts first legal challenge to no-fly list

By Peter Finn
Wednesday, June 30, 2010

The American Civil Liberties Union plans to sue the U.S. government Wednesday on behalf of 10 citizens or legal permanent residents who have been placed on a no-fly list and, in some cases, stranded abroad.

In the suit, the ACLU accuses the government of violating the plaintiffs' constitutional rights.

The number of names placed on the list has increased significantly since the attempted bombing of a Detroit-bound aircraft on Christmas Day, U.S. officials said. Some Americans have been barred from flying home from overseas because their names were listed.

The ACLU says Americans are being deprived of their rights as citizens and of due process.

"It really is abominable that they would treat U.S. citizens this way," said Ben Wizner, a staff lawyer at the ACLU's National Security Project. "There is simply no legal basis for placing a U.S. citizen into involuntary exile. And to use a secret government list without any process to accomplish that goal is so un-American and so unconstitutional."

The suit, a draft copy of which was provided to The Washington Post, names as defendants Attorney General Eric H. Holder Jr., FBI Director Robert S. Mueller III and Timothy J. Healy, the director of the Terrorist Screening Center. In it, the ACLU argues that there is little that people can do if they think their names were erroneously added to the no-fly list. They can appeal to the Department of Homeland Security, but the government will not confirm who is on the list or that any names have been removed from or kept on it.

"The government does not provide the individual with any opportunity to confront, or to rebut, the grounds for his possible inclusion on the watch list," according to the suit, which will be filed in Oregon. "Thus, the only 'process' available to individuals is to submit their names and other identifying information to the Department of Homeland Security and hope that an unknown government agency corrects an error or changes its mind."

An FBI spokesman declined to comment on the suit, noting that the agency had not seen it. He referred to a previous statement on the no-fly list that said that the "FBI is always careful to protect the civil rights and privacy concerns of all Americans."

Before December, the number of people whose names on the no-fly list -- and who are thus barred from boarding a U.S. carrier, a U.S.-bound flight or entering U.S. airspace -- was approximately 4,000, U.S. officials said. It is unclear how many U.S. citizens and legal permanent residents are on the list now.

The 10 plaintiffs in the ACLU suit were barred from getting on planes since December; seven were stopped while attempting to fly to the United States and three while trying to leave the country or take a domestic flight.

Ayman Latif, 32, a former U.S. Marine, said he was attempting to return to Miami from Egypt with his wife and two children in April when he was told he could not board the aircraft and should contact the U.S. Embassy. Since then, he said, he has repeatedly visited the embassy, where the FBI interviewed him, but he cannot get the no-fly ban lifted.

"We are very stressed over here," Latif, who said he moved to Egypt to study Arabic, said in a phone interview. "I didn't do anything wrong. I'm not a terrorist. . . . If I did something, fine, give me due process."

The ACLU and other groups allege that the FBI has in some cases placed people on the no-fly list so they could be questioned abroad without an attorney. In its suit, the ACLU says Nagib Ali Ghaleb, a naturalized U.S. citizen who lived in San Francisco, was prevented from returning home from Yemen in February, but later told he could fly if he became an FBI informant in the Yemeni community in California. Ghaleb declined, according to the suit.

Three of the other plaintiffs -- a naturalized U.S. citizen originally from Somalia and two legal permanent residents, one German and one Guinean -- were stopped from boarding planes at U.S. airports.

Sheik Mohamed Abdirahman Kariye, a U.S. citizen and the imam of the Islamic Center of Portland, was stopped at Portland International Airport in March as he attempted to board a flight to Amsterdam. He planned to fly from there to Dubai, where his daughter lives, he said.

Kariye, 49, said he has no idea why he was put on the no-fly list; he flew as recently as October without incident. But the ACLU suit notes that he was arrested in 2002 after a customs official at the airport in Portland alleged that trace amounts of TNT were found on the luggage of his brother, who was traveling with him. Kariye was released five weeks later when further tests found no trace of explosives.

Kariye said the ban was affecting his family life and his work.

"I hope they will take me off the list or at least tell me why I'm on it," he said.

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