An extraordinarily secret government blacklist just got a little bit less secret.
Seven American citizens who were banned by the government from air travelreceived word yesterday evening that they are cleared to fly. For them, the notice ends a years-long struggle to find out why they were blacklisted and clear their names. As of last night, the seven can finally make plans to visit family, travel for work, and take vacations abroad.
The seven – six men and one women – had been on the government No Fly List, which prevented them from flying to, from, and over U.S. airspace. Even after they were surrounded by TSA agents at the airport and questioned by the FBI, the government refused to officially confirm that they were included on the list. They were also never provided reasons for being banned from air travel, or given a meaningful opportunity to contest the ban. In short, our clients have been locked in a fight to regain their freedoms with virtually no information.
The notice that the seven are “not currently on the No Fly List” came after a federal court last week set deadlines for the government in the ACLU’s challenge to the No Fly List. The court ruled that the government must notify our clients of their status on or off the No Fly List, give reasons to those still on the list, and provide an opportunity for them to challenge those reasons. The first of those deadlines was yesterday, and the government must complete reconsideration of the remaining cases by January 16.
These deadlines follow a June ruling by federal judge, striking down as unconstitutional the government’s procedure for challenging inclusion on the No Fly List.
Yesterday’s milestone isn’t only significant for the seven American citizens who can finally resume their lives. It also makes clear to the six other clients in the case that they’re still banned from flying. And while that may not seem like good news, it’s the first time the government has confirmed – albeit through negative implication rather than a direct confirmation – that people are on the No Fly List. It’s also a very basic victory for due process, because under our Constitution, the government can’t watchlist people and deny them basic freedoms without then telling them they’re blacklisted and why.
Our client Abe Mashal had this response:
More than four years ago, I was denied boarding at an airport, surrounded by TSA agents, and questioned by the FBI. That day, many freedoms that I took for granted were robbed from me. I was never told why this happened, whether I was officially on the list, or what I could do to get my freedoms back. Now, I can resume working for clients who are beyond driving distance. I can attend weddings, graduations, and funerals that were too far away to reach by car or train. I can travel with my family to Hawaii, Jamaica, or anywhere else on vacation. Today, I learned I have my freedoms back.
Our clients have been living in limbo for years, without the ability to challenge a secretive government system that has dramatically curtailed their freedoms. While yesterday’s notice is long overdue and doesn’t make up for the burdens our clients have long endured, it is good news for the seven who can fly again. And the others look forward to finally receiving from the government its reason for watchlisting them, so they can correct errors or innuendo and clear their names.
For the first time ever, the unfair and unnecessary secrecy regime surrounding the No Fly List is beginning to crumble.
The government has committed to revamping the No Fly List redress process more broadly. We expect it to make good on its word and move quickly to give everyone else on the list the opportunity to clear their names.
Latif, et al. v. Holder, et al. – ACLU Challenge to Government No Fly List
In June 2010, the ACLU and its affiliates in Oregon, Southern California, Northern California, and New Mexico filed a legal challenge on behalf of 10 U.S. citizens and permanent residents who cannot fly to or from the U.S. or over American airspace because they are on the government’s secretive No Fly List (an additional three people have since joined the suit). The plaintiffs, who include four U.S. military veterans, have never been told why they are on the list or given a reasonable opportunity to get off it. Being unable to fly has severely affected their lives, including their ability to be with their families, go to school, and travel for work. In August 2013, the court agreed with the ACLU that constitutional rights are at stake when the government puts Americans on the No Fly List. In the same ruling, the court asked the ACLU and the government to submit additional information about the No Fly List redress procedure to help the court decide whether the process as a whole violates the Fifth Amendment’s guarantee of due process. In June 2014, the court ruled the government’s system for challenging inclusion on the No Fly List is unconstitutional.
The lawsuit was filed in the U.S. District Court for the District of Oregon on behalf of:
|Ibraheim (Abe) Mashal, a U.S. citizen and veteran of the U.S. Marine Corps, is a traveling dog trainer and father of three. He is unable to serve clients who are not within driving distance of his Illinois home because he is unable to board a plane.|
|Ayman Latif, a U.S. citizen and disabled Marine veteran.|
|Raymond Earl Knaeble, a U.S. citizen and U.S. Army veteran.|
|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, and from there to Mexico, where he was detained and finally escorted across the border by U.S. officials.|
|Abdullatif Muthanna and Nagib Ali Ghaleb, two American citizens who were prevented from flying home to the United States after visiting family members in Yemen.|
|Faisal Nabin Kashem, Elias Mustafa Mohamed, and Mashaal Rana,three American citizens who were prevented from flying home to the United States after studying abroad in Saudi Arabia and Pakistan.|
|Mohamed Sheikh Abdirahman Kariye, a U.S. citizen and resident of Portland, Oregon who was prevented from flying to visit his daughter who was in high school in Dubai at the time.|
|Stephen Persaud, Amir Meshal, and Salah Ali Ahmed, three American citzens who were prevented from boarding domestic flights.|
Several of our clients were stuck overseas, unable to return to their homes in the United States because they were on the No Fly List. In August 2010, the ACLU petitioned the court for preliminary relief so that the plaintiffs stranded abroad could fly back to the U.S. The government eventually let each of these plaintiffs return home. It also instituted a repatriation procedure by which U.S. citizens or green-card holders stranded outside of the United States due to apparent inclusion on the No Fly List can secure clearance to fly to the United States on an approved flight. Still, the government refused to tell our clients why they hadn’t been able to fly back in the first place or whether they would be able to fly in the future.
The lawsuit aims to remedy this failure. It was filed against officials at the Justice Department, the FBI, and the Terrorist Screening Center, which creates and controls the No Fly List. In May 2011, the district court dismissed the case for lack of jurisdiction, ruling that the lawsuit should have been filed against the Transportation Security Administration, and that the relief the plaintiffs sought could only come from a federal appellate court. The ACLU appealed, and the U.S. Court of Appeals for the 9th Circuit, unanimously reversed the district court’s decision and held that the case should go forward in district court, where it now proceeds.
In a motion for partial summary judgment, the ACLU asked the court to rule that the inadequate redress process for people on the list violates the Constitution’s guarantee of due process. The court partially granted that motion in August 2013, holding that the Constitution applies when the government bans Americans from air travel. Still pending is the court’s decision whether the redress procedures violate the Constitution’s due process guarantee.
In June 2014, the court struck down the redress process as unconstitutional, and it ordered 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 court.
Until the government comes up with a new process, the No Fly List will consist of thousands of people who have been barred altogether from commercial air travel with no meaningful chance to clear their names, resulting in a vast and growing group of individuals whom the government deems too dangerous to fly but too harmless to arrest.