US citizens and permanent residents denied boarding commercial flights at airports now have the opportunity to find out whether they are included on the federal government’s No Fly List, according to court documents filed by the US Department of Justice (DOJ) this week.
The revised redress procedures emerged in light of a federal court ruling last yearthat found no meaningful procedures in place to contest inclusion on the No Fly List, a database of individuals prohibited from boarding an airplane maintained by the FBI Terrorist Screening Center (TSC).
As Homeland Security Today previously reported, on June 24th, 2014, Judge Anna Brown of the US District Court for the District of Oregon found that the FBI’s TSC violated the plaintiffs’ right to due process by lacking “any meaningful procedures” for the complainant to contest their apparent placement on the No Fly List.
Finding for the plaintiffs in a lawsuit filed by the American Civil Liberties Union (ACLU) on behalf of 13 American Muslims, Judge Brown declared the No Fly List violated the plaintiffs’ constitutional rights and, in turn, requested DOJ “fashion new procedures that provide plaintiffs with the requisite due process described herein without jeopardizing national security.”
Homeland Security Today reported last year that a Government Accountability Office audit indicating “DHS TRIP is not able to provide redress for passengers who may have been misidentified to high-risk, rules-based lists and subsequently applied to DHS TRIP for redress.”
An April 13 filing with the US District Court of Oregon indicated that under the previous redress procedures, individuals who had submitted inquiries to the Department of Homeland Security’s Traveler Redress Inquiry Program (DHS TRIP) generally received a letter responding to their inquiry that neither confirmed nor denied their No Fly status.
Under the new procedures, a US person who seeks redress through DHS TRIP about denial of boarding will now receive a letter providing his/her status on the No Fly List, as well as the option to receive further information, such as the specific criterion under which the individual has been placed on the No Fly List.
“The amount and type of information provided will vary on a case-by-case basis, depending on the facts and circumstances,” stated court documents filed in Oregon. “In some circumstances, an unclassified summary may not be able to be provided when the national security and law enforcement interests at stake are taken into account.”
Individuals seeking redress will also have the opportunity to contest their status on the No Fly List. The Transportation Security Administration (TSA) Administrator, in coordination with other relevant agencies, will review the information contesting a No Fly listing, and will issue a final determination. TSA will provide the individual with a final written determination outlining the basis for the decision and will notify the individual of the ability to seek further judicial review.
"The US government is making enhancements to DHS TRIP to provide additional transparency and process for US citizens and lawful permanent residents who have been denied boarding on a commercial aircraft because they are on the No Fly List," DHS said in a statement.
However, the ACLU isn’t satisfied.
"After years of fighting in court for complete secrecy and losing, it’s good that the government is finally now going to tell people of their status on the No Fly List," said Hina Shamsi, director of the American Civil Liberties Union (ACLU) National Security Project and the lead attorney on the case, in a statement.
"Unfortunately, we’ve found that the government’s new redress process falls far short of constitutional requirements because it denies our clients meaningful notice, evidence and a hearing," Shamsi said, noting, "The government had an opportunity to come up with a fair process but failed, sowe’re challenging it in court again."
Earlier this month, the Congressional Research Service (CRS) released the report, Terrorist Databases and the No Fly List: Procedural Due Process and Hurdles to Litigation, which explored the legal challenges associated with an individual’s erroneous placement on the No Fly List.
“In some cases, it has been reported that persons have been prevented from boarding an aircraft because they were mistakenly believed to be on the No Fly list, sometimes on account of having a name similar to another person who was actually on the list,” the report stated.
Some travelers who challenge their placement on the No Fly list and the government’s redress process have alleged that their right to international travel has been deprived without lawful due process.
According to CRS, several courts have determined placement on the No Fly list may infringe upon constitutionally protected interests, including the right to travel internationally, which Judge Anna Brown described as “not a mere convenience or luxury in this modern world,” but rather “a necessary aspect of liberties sacred to members of a free society.”
However, declassifying information about the list could have a damaging impact on national security. The CRS report said requiring DHS to reveal classified information through this process, even to the complainant, could “damage . . . national security, including by jeopardizing intelligence sources and methods.”
In the recent case of Mohamed v. Holder in which the plaintiff contested placement on the No Fly List, the government invoked the state secrets privilege and moved to dismiss the case entirely, asserting, “Any attempt to litigate how these nomination procedures were applied in this case … risks disclosure of the privileged information.”
The motion to dismiss was denied by the court on the grounds that the plaintiff’s claim might be adjudicated without recourse to documents subject to the privilege.
“Properly balancing the important national security interest of preventing terrorist attacks with the civil liberties of travelers prevented from boarding a plane is a complicated and delicate matter,” the CRS report concluded.
In another, but related issue, not all known and suspected terrorists are put on the No Fly list or entered into terrorist watchlist databases. Homeland Security Today first reported that in 2010 that, "At the behest of federal intelligence and law enforcement agencies … the [State] Department sometimes is asked to not revoke, and/or to provide visas to suspected or known terrorists in order to allow them into the United States so that their activities here can be monitored."
