Court Orders Government to Give Plaintiffs in ACLU Lawsuit a Chance to Clear Their Names
June 24, 2014 – In a landmark ruling, a federal judge struck down as unconstitutional the government’s procedures for people on the No Fly List to challenge their inclusion. The decision came in an American Civil Liberties Union lawsuit brought on behalf of 13 Americans who found themselves on the list without any notice, reasons, or meaningful way to get off it.
The judge ordered the government to create a new process that remedies these shortcomings, calling the current process “wholly ineffective” and a violation of the Fifth Amendment's guarantee of due process. The ruling also granted a key request in the lawsuit, ordering the government to tell the ACLU’s clients why they are on the No Fly List and give them the opportunity to challenge their inclusion on the list before the judge.
“For years, in the name of national security the government has argued for blanket secrecy and judicial deference to its profoundly unfair No Fly List procedures, and those arguments have now been resoundingly rejected by the court,” said ACLU National Security Project Director Hina Shamsi, one of the attorneys who argued the case.
“Our clients will finally get the due process to which they are entitled under the Constitution. This excellent decision also benefits other people wrongly stuck on the No Fly List, with the promise of a way out from a Kafkaesque bureaucracy causing them no end of grief and hardship. We hope this serves as a wake-up call for the government to fix its broken watchlist system, which has swept up so many innocent people.”
According to media reports, there are more than 20,000 people on the No Fly List. Their only recourse is to file a request with the Department of Homeland Security's Traveler Redress Inquiry Program (DHS TRIP), after which DHS responds with a letter that does not explain why they were denied boarding. The letter does not confirm or deny whether their names remain on the list, and does not indicate whether they can fly.
The ruling from U.S. District Court Judge Anna J. Brown in Portland found, “[W]ithout proper notice and an opportunity to be heard, an individual could be doomed to indefinite placement on the No-Fly List. … [T]he absence of any meaningful procedures to afford Plaintiffs the opportunity to contest their placement on the No-Fly List violates Plaintiffs’ rights to procedural due process.”
One of the plaintiffs in the case is Sheikh Mohamed Abdirahman Kariye, who is the imam of Portland’s largest Mosque.
“Finally I will be able to challenge whatever incorrect information the government has been using to stigmatize me and keep me from flying,” Imam Kariye said. “I have been prevented by the government from traveling to visit my family members and fulfill religious obligations for years, and it has had a devastating impact on all of us. After all this time, I look forward to a fair process that allows me to clear my name in court.”
The national ACLU, along with its affiliates in Oregon, Southern California, Northern California, and New Mexico, filed the lawsuit in June 2010 on behalf of 13 U.S. citizens, including four military veterans. In July 2012, the 9th Circuit Appeals Court reversed the district court's dismissal of the case on jurisdictional grounds, allowing the district court to consider the case on its merits. In August 2013, the court found that constitutional rights are at stake when the government places Americans on the list.
“No person should be denied their fundamental liberty without being told the reason for the government’s action and having a meaningful opportunity to challenge that decision,” said David Fidanque, Executive Director of the ACLU of Oregon. “It’s long past time for the government to fix this broken system.”
Steven Wilker of Tonkon Torp, LLC was a cooperating attorney on behalf of the ACLU of Oregon on this case.
August 29, 2013 - A federal court in Portland, Oregon ruled late yesterday that constitutional rights are at stake when the government places Americans on the No Fly List, agreeing with the plaintiffs in a lawsuit filed by the American Civil Liberties Union.
July 26, 2012 – A three-judge panel of the U.S. Ninth Circuit Court of Appeals today unanimously ruled that the ACLU’s lawsuit challenging the government’s secretive No Fly List should go forward.
May 11, 2012 – The American Civil Liberties Union argued in a federal appeals court Friday morning that its challenge to the government’s secretive No Fly List should be reinstated.
May 4, 2011 - The U.S. District judge hearing the "No-Fly List" case dismissed the lawsuit against the federal government saying she doesn't have the authority to hear the case. "Our real disappointment is for the plaintiffs who have been unable to fly and have been given no reason or explanation," said Ben Wizner, staff attorney with the ACLU National Security Project, in an article in The Oregonian. The ACLU plans to appeal the decision.
June 30, 2010 - The American Civil Liberties Union today filed a first-of-its-kind lawsuit on behalf of 10 U.S. citizens and lawful residents who are prohibited from flying to or from the United States or over U.S. airspace because they are on the government’s “No-Fly List.” None of the individuals in the lawsuit, including a disabled U.S. Marine Corps veteran stranded in Egypt and a U.S. Army veteran stuck in Colombia, have been told why they are on the list or given a chance to clear their names. One of the clients in the ACLU’s case resides in Portland and the suit was filed in U.S. District Court here.
“More and more Americans who have done nothing wrong find themselves unable to fly, and in some cases unable to return to the U.S., without any explanation whatsoever from the government,” said Ben Wizner, staff attorney with the ACLU National Security Project. “A secret list that deprives people of the right to fly and places them into effective exile without any opportunity to object is both un-American and unconstitutional.”
The ACLU of Oregon joined the national ACLU and other affiliates in Southern California, Northern California and New Mexico in filing the lawsuit against the U.S. Department of Justice, the FBI and the Terrorist Screening Center in U.S. District Court for the District of Oregon. The plaintiffs on the case are:
• Ayman Latif, a U.S. citizen and disabled Marine veteran living in Egypt who has been barred from flying to the United States and, as a result, cannot take a required Veterans’ Administration disability evaluation;
• Raymond Earl Knaeble, a U.S. citizen and U.S. Army veteran who is stuck in Santa Marta, Colombia after being denied boarding on a flight to the United States;
• Steven Washburn, a U.S. citizen and U.S. Air Force veteran who was prevented from flying from Europe to the United States or Mexico; he eventually flew to Brazil, from there to Peru, and from there to Mexico, where he was detained and finally escorted across the border by U.S. and Mexican officials;
• Samir Mohamed Ahmed Mohamed, Abdullatif Muthanna, Nagib Ali Ghaleb and Saleh A. Omar, three American citizens and a lawful permanent resident of the United States who were prevented from flying home to the U.S. after visiting family members in Yemen;
• Mohamed Sheikh Abdirahman Kariye, a U.S. citizen and resident of Portland, Oregon who was prevented from flying to visit his daughter who is in high school in Dubai;
• Adama Bah, a citizen of Guinea who was granted political asylum in the United States, where she has lived since she was two, who was barred from flying from New York to Chicago for work; and
• Halime Sat, a German citizen and lawful permanent resident of the United States who lives in California with her U.S.-citizen husband who was barred from flying from Long Beach, California to Oakland to attend a conference and has since had to cancel plane travel to participate in educational programs and her family reunion in Germany.
According to the ACLU’s legal complaint, thousands of people have been added to the “No-Fly List” and barred from commercial air travel without any opportunity to learn about or refute the basis for their inclusion on the list. The result is a vast and growing list of individuals who, on the basis of error or innuendo, have been deemed too dangerous to fly but who are too harmless to arrest.
“Without a reasonable way for people to challenge their inclusion on the list, there’s no way to keep innocent people off it,” said Nusrat Choudhury, a staff attorney with the ACLU National Security Project. “The government’s decision to prevent people from flying without giving them a chance to defend themselves has a huge impact on people’s lives – including their ability to perform their jobs, see their families and, in the case of U.S. citizens, to return home to the United States from abroad.”
ACLU of Oregon Executive Director David Fidanque said that most people assume the no fly list is kept by the Transportation Security Administration (TSA), but that is not the case.
“It is only the FBI-run ‘Terrorist Screening Center’ which has the authority to take someone off the list,” Fidanque said. “The FBI has refused to provide any opportunity for individuals to find out why they are on the list or to rebut the information that led to the FBI’s decision.”
In addition to Wizner and Choudhury, attorneys on the case are Kevin Díaz and cooperating attorney Steven Wilker with the ACLU of Oregon; Ahilan Arulanantham, Jennie Pasquarella and cooperating attorney Reem Salahi with the ACLU of Southern California; Alan Schlosser and Julia Harumi Mass of the ACLU of Northern California; and Laura Ives of the ACLU of New Mexico.