No-Fly List Gets Twin Courtroom Floggings

The federal no-fly list has
been one of the more chilling consequences for the war on terror,
less for its consequences (though those can be personally
devastating) than for its arbitrary and unappealable nature. Now
the American Civil Liberties Union reports on two cases in which
federal judges assail the destructive consequences for liberty
inherent in the no-fly list and the need for some formal means of
appeal and redress.

From the
ACLU:

On January 14, 2014, U.S. District Judge William Alsup issued a
decision in the case of Rahinah Ibrahim, a Stanford PhD student and
Malaysian citizen who was prevented from boarding a flight back to
the United States, handcuffed, and held in a detention cell for two
hours based on what turned out to be her mistaken placement on the
No Fly List. After a trial, Judge Alsup concluded that the
government’s internal administrative redress procedures (the same
procedures at issue in the ACLU’s case) violate the Constitution’s
Due Process clause because they do not provide a meaningful
opportunity to contest or expunge erroneous information that forms
the basis for inclusion on the list. He required the government to
disclose to Ms. Ibrahim whether she is on the No Fly List and to
“cleanse and/or correct its lists” of mistaken information about
her.

In another ruling issued on January 22, 2014, U.S. District
Judge Anthony Trenga rejected the government’s request to dismiss a
case brought by Gulet Mohamed, a U.S. citizen who alleges that he
was prevented from returning to the United States from Kuwait
because he appeared on the No Fly List, and that he was
subsequently subjected to beatings and mistreatment while in
detention in Kuwait.

Judge Trenga was unsparing in describing the consequences of
inclusion on the No Fly List: “The impact on a citizen who cannot
use a commercial aircraft is profound,” he wrote, and “placement on
the No Fly List is life defining and life restricting across a
range of constitutionally protected activities and aspirations.” In
short, in Judge Trenga’s words, “a No Fly List designation
transforms a person into a second class citizen, or worse.”

This follows on a
federal court decision in August that travelling
internationally by air involves “a constitutionally protected
liberty interest.” While that case still has a way to go before it
reaches a conclusion, the implications of a constitutionally
protected right are that any limits on it must involve due process.
Simply slapping names on a list because they’re allegedly suspected
of the definition-of-terrorism-of-the-week and leaving people
stranded won’t cut it.

The more recent decisions would seem to follow on that logic,
recognizing that arbitrary limits on travel really do impair
people’s ability to exeercise their rights and such
limits—especially when they involve official screw-ups—have to be
fixable through some formal process.

Scott Shackford
wrote up the January 14 decision, earlier. He noted that the
feds were so petty, they actually barred Ibrahim’s daughter from a
flight to prevent her from testifying in the case brought by her
mother.

Yes, a touch of due process would be welcome.