Judge Declares Secretive No-Fly List Process Unconstitutional

Earlier this year a judge
ordered the feds to correct a woman’s improper inclusion on the

no-fly list, which had made her whole life miserable for years
(and it was all due to a clerical error). Today a federal district
judge invoked that case in order to declare that the entire
bureaucratic process for people to challenge their inclusion onto
the no-fly list
is unconstitutional and needs to be reformed.

The win goes to the American Civil Liberties Union (ACLU), who
represented 13 Americans who were stuck on the no-fly list and were
trying to get off. Some of them were military veterans, and some of
them claimed that officials told them they could only get off the
list by serving as government informants. The ACLU responds:

The judge ordered the government to create a new process that
remedies these shortcomings, calling the current process “wholly
ineffective” and a violation of the Fifth Amendment’s guarantee of
due process. The ruling also granted a key request in the lawsuit,
ordering 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 judge.

“For years, in the name of national security the government has
argued for blanket secrecy and judicial deference to its profoundly
unfair No Fly List procedures, and those arguments have now been
resoundingly rejected by the court,” said ACLU National Security
Project Director Hina Shamsi, one of the attorneys who argued the
case.

“Our clients will finally get the due process to which they are
entitled under the Constitution. This excellent decision also
benefits other people wrongly stuck on the No Fly List, with the
promise of a way out from a Kafkaesque bureaucracy causing them no
end of grief and hardship. We hope this serves as a wake-up call
for the government to fix its broken watchlist system, which has
swept up so many innocent people.”

The “Kafkaesque bureaucracy” is one in which people who are
added to the no-fly list are not told why they’re added. There is a
process to petition to get off the list, but it’s secretive. Those
on the list submit information that they hope might get them off
the list (because, again, they aren’t told why they’re on the
list). If they’re rejected, they still don’t know why or what
information might prove their innocence. The judge ruled this is a
violation of due process and ordered the government to come up with
a system where fliers can actually challenge their inclusion.

The previous case of Rahinah Ibraham was brought up because the
feds defended the no-fly list removal process by claiming it had
extensive quality controls to make sure nobody was erroneously
placed on the list in the first place. And yet Ibraham was placed
on the list in 2004 because an FBI agent literally
checked the wrong box on a form. The mistake was only uncovered
in 2013 because of her lawsuit. The judge pointed to this case as
an example of problems with the current system. Furthermore, the
judge notes the inability for people on the no-fly list to review
and correct incorrect information is in violation of the
legislation that gave the government the authority to create and
implement the list.

The judge ordered that the Department of Justice must remedy the
problems with lack of due process in the implementation of the
no-fly list. Read the ruling
here (pdf).