Thirteen Muslim Americans challenging the U.S. governments’ secretive “no-fly” list won a partial victory in federal court when a judge found they “have a constitutionally protected liberty interest” in traveling internationally by air.
But U.S. District Judge Anna Brown has yet to decide whether the government violated their constitutional rights to due process under a policy that excludes individuals from commercial air travel if they are suspected of having ties to terrorism.
In her ruling late on Wednesday in Portland, the judge also asked both the plaintiffs and the Department of Justice for more information before deciding key parts of the case.
The 13 plaintiffs, all U.S. citizens who deny any links to terrorism, say they were placed on the government’s no-fly list without notice or any realistic avenue of appeal.
They complain they only learned of their no-fly status after buying airline tickets, arriving at airports and being refused permission to board a plane. The government has refused to officially acknowledge that they are on its list.
The only recourse an individual has for clearing one’s name, they argue, is an essentially dead-end process by which they fill out a form and receive back a letter with no explanation or even a confirmation of their no-fly status.
The government counters that there is an adequate means of contesting the flight ban, and that individuals listed under the policy may ultimately petition a U.S. appeals court directly for relief.
The Justice Department has also argued that barring one’s access to air travel is not an undue burden or a violation of a constitutionally protected right.
Brown disagreed, disputing the government’s “contention that international air travel is a mere convenience, in light of the realities of our modern world.”
ADEQUATE AVENUE OF APPEAL
But the judge said she was not ready to decide on a proper remedy in the case, suggesting the answer hinged on whether the plaintiffs had an adequate avenue of appeal.
“The court is not yet able to resolve on the current record whether the judicial-review process is a sufficient, post-deprivation process under the … Constitution,” she wrote.
She gave both sides until September 9 to recommend a process “to better develop the record” so she can complete her ruling.
During a hearing in June, Brown questioned if the government’s procedure of directly appealing a no-fly status to an appellate court was feasible. Appellate judges are limited to reviewing a record established through lower-court proceedings.
Moreover, no-fly case files the government keeps contain classified information that is off-limits to examination by the travelers in question or their lawyers.
The American Civil Liberties Union, which brought the lawsuit in 2010, applauded the ruling, while a Justice Department attorney who argued the government’s case in court declined to comment.
“For the first time, a federal court has recognized that when the government bans Americans from flying and smears them as suspected terrorists, it deprives them of constitutionally protected liberties, and they must have a fair process to clear their names,” ACLU attorney Nusrat Choudhury said in a statement.
The no-fly list, established in 2003 in the aftermath of the September 11, 2001, attacks, bars those on it from flying within the United States or to and from the country. It is shared with foreign governments.
As of last year, the list included some 20,000 people deemed by the FBI as having, or reasonably suspected of having, ties to terrorism, an agency spokesman said at the time. About 500 of them were U.S. citizens.
Among the 13 plaintiffs challenging the policy are four U.S. military veterans, one a former member of the Air Force who has been separated from his wife since 2010 while she was stuck in Ireland with visa troubles.
Another plaintiff, Aalah Ali Ahmed, says he could not travel to Yemen when his brother died and has been unable to visit his extended family or manage property he owns in Yemen.