U.S. citizens need a better way to challenge flight ban

Wednesday, July 14, 2010

AYMAN LATIF believes he is on the U.S. no-fly list, but he does not know for sure.

According to a recently filed lawsuit, Mr. Latif was born and raised in Miami and has lived in Egypt with his wife and daughter since 2008. He was barred from boarding a U.S.-bound commercial flight from Cairo earlier this year on a scheduled trip to Florida -- an act Mr. Latif believes indicates he is on the no-fly list.

Mr. Latif filed a challenge through the online Traveler Redress Inquiry Program, or TRIP, asking that his name be taken off the list. But he probably will not get a clear-cut answer because the federal government neither confirms nor denies the identities of those subject to the flight ban.

The American Civil Liberties Union filed suit on behalf of Mr. Latif and nine other U.S. nationals who believe they have been wrongly tagged and subject to the flight ban. They argue that their constitutional rights to due process have been violated because they have been denied the ability to see and challenge the evidence the government has relied on to place them on the list. They have a point -- to a point.

Some 7,000 to 8,000 people throughout the world are on the U.S. no-fly list; roughly 400 are U.S. nationals. The FBI says that only known or suspected terrorists believed to pose a threat to airline safety are placed on the list; a person known only to be involved in funding terrorist activity would not be on the list. The names of suspects go through multiple agencies and intelligence checks before being banned from commercial air travel.

Yet the list is essentially a black hole. No one outside of a tight circle of law enforcement and intelligence officials knows for certain who is included. Indeed, according to the FBI, 99.4 percent of those who challenge their presence on the list were never on it to begin with; hitches in their travel experiences stemmed from other factors, including the policies of individual airlines, which may also bar passengers with a history of boorish behavior on flights.

There are legitimate law enforcement reasons for keeping the list secret: Disclosure of such information would tip off known or suspected terrorists, who could then change their habits or identities to escape government scrutiny. But allowing the keeper of the list to police itself -- and to be the sole arbiter of whether a person is legitimately "blacklisted" and denied the ability to fly commercially -- is not ideal.

The TRIP "redress" process at the Department of Homeland Security works well in the case of mistaken identity, in which an innocent person is snagged because his name is similar to one on the list. The relatively new requirement that passengers provide their date of birth and gender at the time they buy their tickets should cut down on mistaken identity. The Justice Department's Office of Inspector General also provides an important check on the FBI's work on the no-fly list.

But U.S. citizens who believe they are on the list because of bad information should have a chance to challenge that designation before an independent arbiter. A federal court may be an appropriate forum, if governed by procedural safeguards to protect national security information. Creating an independent review panel within the executive might also meet the need.

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