In a prior column, it was noted that U.S. District Court Judge Anna J. Brown in Oregon has ruled that the United States government’s No-Fly List is unconstitutional. The prior column examined the remarkably vague—not to mention publicly unknowable—criteria for anyone being added to the No-Fly List. It was not merely the vagueness of the No-Fly List criteria, however, that created the constitutional problems addressed by the court’s ruling.
Judge Brown explained a fundamental problem with the No-Fly List stems from the fact that most Americans are provided no real remedy to have their name removed from this list when it has been mistakenly included, resulting in an unconstitutional deprivation of the right to travel and not be falsely and unfairly stigmatized as involved in terrorism. While a powerful U.S. Senator like Edward Kenney was able to get his mistaken No-Fly status corrected, most people would find that task exceedingly difficult, if not impossible.
A Mistaken “No-Fly List” Status Has No Remedy
The ACLU’s lawsuit against the No-Fly List sets forth how each of the thirteen plaintiffs diligently, not to mention frustratingly, tried to obtain an explanation of why they were being denied the access to any commercial aviation, and because they are not engaged in terrorism, to obtain a remedy. Accordingly, each plaintiff pursued the recommendation of the Department of Homeland Security and filed “DHS TRIP” complaints.
DHS’s “Traveler Redress Inquiry Program” (DHS TRIP) is the mechanism for inquiries or requests to resolve problems experienced during screening at airports, including: watch list issues and situations where travelers believe they have been unfairly or incorrectly delayed, denied boarding, or identified for additional screening. Complaints and inquiries can be filed online, by email or regular mail.
Judge Brown described the process in detail, which I have summarized. DHS TRIP matters are handled by the Terrorist Screening Center Redress unit (TSC Redress), which determines (1) whether the traveler is an “exact or near match to an identity” of the name in the government’s database, and (2) whether—“if the traveler is an exact match”—the name should remain in the database. TSC Redress reports to DHS TRIP, which sends a determination letter advising the traveler only that the review is complete, and if appropriate they advise the traveler that he or she can seek judicial review as a next step. In short, the best a traveler can hope for is a further process, with no indication of what is actually at stake.
If the traveler seeks judicial review, the reviewing court is provided that traveler’s administrative file, but that file is not given to the traveler. Judge Brown further described the process she found wanting:
[A]t no point during the judicial-review process does the government provide the petitioner with confirmation as to whether the petitioner is on the No-Fly List, set out the reasons for including petitioner’s name on the List or identify any information or evidence relied on to maintain the petitioner’s name on the List. For a [petitioning traveler] who is on the No-Fly List, the court will review the administrative record submitted by the government in order to determine whether the government reasonably determined the petitioner satisfied the minimum substantive derogatory criteria for inclusion on the List. If after review the court determines the administrative record supports the petitioner’s inclusion on the No-Fly List, it will deny the petition for review. If the court determines the administrative record contains insufficient evidence to satisfy the substantive derogatory criteria, however, the government takes the position that the court may remand the matter to the government for appropriate action.
In short, this process is like a coin flip where you agree that if heads—the government wins; if tails—you lose, because even if you prevail in a judicial review proceeding, the government claims it can, if it wishes, keep you tied up indefinitely in an additional bureaucratic process.
Constitutional Consequences of No-Fly List Naming
The ACLU’s lawsuit proves there are serious consequences with No-Fly status. The hardships suffered by the plaintiffs in this lawsuit clearly established “the significance of the depravation of the right to travel internationally” and “the stigma of being a suspect terrorist [when] that is publicly disclosed to airline employees and other travelers near the ticket counter.”
Based on facts (uncontested by the government at this stage of the proceedings), Judge Brown found that No-Fly List inclusion results in a “major burden” and significant suffering imposed on plaintiffs denied international air travel, which include:
[L]ong-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.
Judge Brown, understandably and appropriately, disagreed with the government’s claim that “all modes of transportation must be foreclosed before any infringement of an individual’s due-process right to international travel is triggered.” In addition, the court noted that not only commercial flights are precluded but since the United States shares this information with 22 foreign governments, it can preclude other modes of travel as well, not to mention entry into other countries. The government largely conceded that anyone on the No-Fly List becomes stigmatized, and while the damage may be confined, the Court found that No-Fly status raised “constitutionally-protected interests” in reputation.
What Is the Solution?
Judge Brown has drawn on a developing body of post-9/11 case law examining the difficult issues of balancing the government’s efforts to protect the national security in a world with terrorism, and the rights of Americans to enjoy their constitutionally protected freedom and liberties. But this lawsuit is not over, and the solution has not yet been found and agreed upon.
The court ruled that the government “must provide a new process that satisfies the constitutional requirements for due process,” by fashioning “new procedures that provide Plaintiffs with the requisite due process described [by the court] without jeopardizing national security.” The court suggested doing what the government has to date been unwilling to do: to tell the plaintiff why he or she is on the No-Fly List. The court further suggested that the government might also openly respond to the evidence the plaintiffs submitted in both administrative and judicial review proceedings that were pursued. The court noted that such procedures have been identified by the Ninth Circuit as appropriate due process, including such additional actions as the government providing unclassified summaries of the reasons for placement on the No-Fly List or disclosing such classified information to a properly cleared attorney representing a traveler. Judge Brown is making rather clear what she believes necessary to make this process constitutional.
There has been a good bit of scholarly attention to the constitutional problems created by No-Fly Lists, and similar watch lists. There seems to be a consensus that such lists, when fashioned to properly protect the rights and liberties of Americans, can assist in protecting national security. But the potential for abuse has long been noted, and it has clearly culminated in this lawsuit. I have provided links to several studies I found illuminating, here, here and here.
What will be most interesting is how the government responds to Judge Brown’s order. The parties have been instructed to confer before July 14, 2014, and it is anything but clear how the government will deal with the situation. So I will return to this matter when it becomes clear. Meanwhile, if you are a frequent flyer, as I am, think about the TSA Pre-Check. It runs your name through the TSA database and gives you a Known Traveler Number, which should preclude accidentally ending up on the No-Fly List (while expediting your visits with TSA at the airport.)
Great series, very troubling to say the least. I don’t know where this country is going to end up but its not looking good.
Now, if everyone in the entire US is listed in the List, then there would be no more list.