Homeland Security Will Finally Admit To Banned Flyers That They're On The No Fly List

from the sued-into-acting-like-a-responsive-agency dept

Good news has arrived for fliers who'd like to know exactly what the hell is going on when they're forbidden to board an airplane.

The government will no longer refuse to confirm or deny that persons who are prevented from boarding commercial aircraft have been placed on the “No Fly List,” and such persons will have new opportunities to challenge the denial of boarding, the Department of Justice announced yesterday in a court filing.

Thanks to several lawsuits, the DHS is no longer able to Glomar its way out of responding to travelers who suspect they've been blacklisted from flying. This filing addresses Mohamed v. Holder, but builds on revised redress procedures promised in the wake previous lawsuits.

Under the previous redress procedures, individuals who had submitted inquiries to DHS TRIP generally received a letter responding to their inquiry that neither confirmed nor denied their No Fly status. Under the newly revised procedures, a U.S. person who purchases a ticket, is denied boarding at the airport, subsequently applies for redress through DHS TRIP about the denial of boarding, and is on the No Fly List after a redress review, will now receive a letter providing his or her status on the No Fly List and the option to receive and/or submit additional information.

It's a huge step forward from just being told less-than-nothing by the agency's misnamed "Traveler Redress Inquiry Program." The first step has the DHS performing its own "redress review" -- something that appears to have no time limit for responses. And that's the beginning of the process. Members of the public will finally receive better and more detailed responses, but they will asked to perform several rounds of hoop-jumping, with the first couple of steps seemingly redundant.

If such an individual opts to receive and/or submit further information after receiving this initial response, DHS TRIP will provide a second, more detailed response. This second letter will identify the specific criterion under which the individual has been placed on the No Fly List and will include an unclassified summary of information supporting the individual’s No Fly List status, to the extent feasible, consistent with the national security and law enforcement interests at stake.

Other than "because we're a bureaucracy," there doesn't seem to be any reason full details could not be provided in a single letter. But that's the government for you: if it's not killing trees and utilizing its underused postal service, it's not being productive. Why do in one step what can be done in several (also: in triplicate, if possible), etc.

Even with these redress improvements, some travelers will still receive answers containing little to no information or guidance.

The amount and type of information provided will vary on a case-by-case basis, depending on the facts and circumstances. In some circumstances, an unclassified summary may not be able to be provided when the national security and law enforcement interests at stake are taken into account.

On the upside, the DHS will actually allow this to be a bit more adversarial. Travelers will be able to submit responses to the DHS's initial No Fly List determination and submit information that might prompt a reconsideration of their inclusion on this list. The final decision is still the government's but at least it's open to basing its decision on more than its own security-first worldview and limited, supposedly inculpatory data.

Filed Under: dhs, glomar, homeland security, no fly list, transparency

Court Tells US Gov't That 'State Secrets' Isn't A Magic Wand They Can Wave To Make Embarrassing Cases Go Away

from the good-news dept

Earlier this year, we wrote about the case of Gulet Mohamed, a US citizen who was put on the no fly list and ran into some issues in the Middle East because of that (and by "issues" we mean he was beaten by Kuwaiti officials for wanting to fly home to Virginia). The DOJ was making some nutty arguments, including claiming that the whole case should be thrown out because "state secrets." This is the usual claim in these kinds of cases. Back in August we noted that the judge, Anthony Trenga, was skeptical of this argument, asking for the DOJ to provide a lot more info to back up its claims (in that post we also noted that the DOJ wanted to pretend that the leaked guidelines for how the no fly list works hadn't been leaked).

Now the judge has ruled officially and rejected the DOJ's argument, saying that they can't just claim "state secrets" and walk away. In the ruling, Judge Trenga makes it clear that while there may be some sensitive information in some documents, the case can move forward without that information being revealed:

Certain of the submitted documents appear to contain confidential, security sensitive information that may fall appropriately within a law enforcement privilege. However, the information presented to date by the defendants in support of the state secrets privilege as to these documents is insufficient to allow the Court to conclude that "there is a reasonable danger" that disclosure of these documents to at least the plaintiffs counsel, under the protections of an adequate protective order, would disclose information that would "expose military matters which, in the interest of national security, should not be divulged."

More importantly, Judge Trenga notes that the DOJ has to get over this idea that the "state secrets" privilege is some kind of "sovereign immunity" claim that the DOJ can just wave around and have entire cases dismissed:

... the state secrets privilege is a judicially created rule of evidence, not a doctrine of sovereign immunity or non-justiciability, whose applicability and consequences, where applicable, are best considered within a specific context during the actual adjudication of any claims to which it may apply.

That's a bit of a complex sentence, but it's basically saying that state secrets may apply to specific bits of evidence, but shouldn't be used to just toss out an entire case. Kudos for Judge Trenga for not just rolling over when the DOJ said "state secrets." It would be nice if more judges did the same.

Filed Under: dhs, doj, evidence, gulet mohamed, no fly list, state secrets

DOJ Finally Tells Short List Of People That They Are Officially Not On The No Fly List

from the it's-a-start dept

Last week, we wrote about Judge Anna Brown telling the DOJ to quit stalling and to tell a list of plaintiffs whether or not they were on the no fly list. This was a followup to her earlier ruling, noting that the process to get off of the list was unconstitutional. While a different court had ordered the US government to make sure that Rahinah Ibrahim was off the list in an earlier case (though she's been kept on another list), this was the first time that the court had directly ordered the US government to reveal to people whether or not they were on the list.

Late on Friday, the government sent a short letter to the ACLU, telling seven of the plaintiffs in the case that they were "not currently on the No Fly List as of the date of this letter." From the ACLU:

Today’s letter from the government informed the seven plaintiffs that they “are not currently on the No Fly List.” One of the plaintiffs notified was Abe Mashal, a U.S. Marine Corps veteran and dog trainer who suffered professionally and personally when he could not travel far from his home in Illinois.

“More than four years ago, I was denied boarding at an airport, surrounded by TSA agents, and questioned by the FBI,” said Mashal. “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."

It's pretty crazy the lengths Mashal had to go to get his freedoms "back."

The government still needs to respond to the other six plaintiffs in the case who it did not name in this letter -- though the fact that they were not named suggests they are still on the no fly list. The government has a bit more time with those people, since it needs to also provide some sort of explanation, and allow those people to effectively appeal their status on the list.

Filed Under: dhs, doj, homeland security, no fly list
Companies: aclu

Court Tells DOJ To Stop Stalling And Figure Out If People Suing Over No Fly List Can Get Off

from the pick-up-the-pace dept

Back in June, we wrote about an important ruling from a court in Oregon that found the process of getting off the Homeland Security "no fly list" to be unconstitutional. The government has continued to try to stall over this, but the judge has basically told the Justice Department to speed things up and to tell the plaintiffs whether or not they're still on the list, so that further legal action can move forward, if necessary (and, yes, it's likely necessary). From the official ruling:

No later than October 10, 2014, Defendant shall identify to the Court and Plaintiffs which Plaintiffs, if any, will not be precluded as of that date from boarding a commercial aircraft flying over United States airspace.

The court tells the US government that as soon as it realizes any of the plaintiffs shouldn't be on the list it needs to inform them of that fact, and for those that remain on the list, it needs to give a detailed reason:

If Defendants determine after the interim substantive review of a Plaintiff's status that such Plaintiff is not presently eligible to fly over United States airspace, Defendants shall promptly and consistent with the Court's Opinion and Order of June 24, 2014:

(a) give such Plaintiff notice of that determination;

(b) give such Plaintiff an explanation of the reasons for that determination sufficient to permit the Plaintiff to provide Defendants relevant information responsive to such reasons; and

(c) consider any such responsive information provided before completing the substantive reconsideration of such Plaintiff's DHS TRIP redress inquiry as ordered herein.

It's pretty clear the judge finds the whole no fly list situation to be ridiculous, and the fact that these people haven't been able to fly for years with no recourse problematic:

The Court notes the importance, complexity, and sensitivity of the issues raised and the remedies to be implemented in this matter preclude proceeding with undue haste. Nevertheless, in light of the fact that each Plaintiff has presumably been prevented from flying internationally and otherwise over United States airspace during the four years this matter has been pending, the Court concludes the time has come to resolve the claims of each Plaintiff on an individualized basis as soon as practicable.

It seems entirely likely that the DOJ and DHS will continue to try to stall and delay, but Judge Anna Brown makes it fairly clear in her ruling that she's not interested in stalling attempts and will not treat them kindly.

Filed Under: dhs, doj, no fly list, tsdb
Companies: aclu

DOJ Pretends No Fly Guidelines Haven't Been Leaked, Claims 'State Secrets' To Avoid Revealing Them To The Judge

from the hiding-in-shame dept

Back in July, we wrote about the Intercept releasing a leaked copy of the US law enforcement guidelines for putting someone on the no fly list. There have been a series of lawsuits recently concerning the no fly list, and the government has basically done everything possible, practically to the point of begging judges, to avoid having those cases move forward. So far, that's failed miserably. The Rahinah Ibrahim case, for example, showed how a Stanford PhD student with no terrorist connections was put on the list by someone checking the wrong box on a form (and then was kept on a separate terrorist watchlist under a secret exception to the rule that there be "reasonable suspicion.") In that case, like every other, the DOJ claimed "state secrets" in trying to get the case dismissed. There have also been cases about the feds using the threat of being put on the no fly list to force unwilling people to "become informants." An important ruling back in July said that the process for getting off the list is unconstitutional.

In another case involving the list, Gulet Mohamed is challenging the fact that he's on the list, and the DOJ has done its usual "state secrets, throw out the case" claim. The judge, so far, isn't buying it, and has asked the DOJ to reveal how it puts people on the list. Specifically, Judge Anthony Trenga asked the DOJ to provide:

[A]ll documents, and a summary of any testimony, expert or otherwise, that the United States would present at an evidentiary hearing or trial to establish that inclusion on the No Fly List, as applied to United States citizens who are not under indictment or otherwise charged with a crime and who have not been previously convicted of a crime of violence, is necessary, and the least restrictive method available, to ensure the safety of commercial aircraft from threats of terrorism, and that no level of enhanced screening would be adequate for that purpose.

In a filing last week, Mohamed's lawyers pointed to the leaked guidelines, and the DOJ responded by saying, "Huh? Document? What document? We don't know of any such document, and deny its existence." Or something to that effect:

With respect to Plaintiff’s points, Defendants do not acknowledge the authenticity of the purportedly leaked documents, and will respond to the proposed Notice in due course.

The DOJ has now gone further and said it still doesn't think it should have to produce the information because it's still claiming state secrets, and it doesn't think the judge should have to look at the documents in question to determine if the state secrets demand is appropriate. Yes, they're arguing that the judge should determine if something can properly be called a state secret without revealing what the information is. Actually, the DOJ is going even further, arguing that it's inappropriate to look at the alleged state secrets to determine if the state secrets privilege applies.

The requested submission would not assist the Court in deciding the pending Motion to Dismiss because it is not an appropriate means to test the scope of the assertion of the State Secrets privilege, does not pertain to the claims in the Complaint, and does not address the appropriate legal standard for substantive due process.

Got that? The Court should just agree that it's a state secret and shut down the entire case. The DOJ pretends first that the necessary documents haven't already been leaked to the world, and second acts like it's crazy for a judge to want to actually see the documents before determining if it's really a "state secret" they're protecting.

Of course, as we noted, when the document leaked it seemed pretty clear that the DOJ was lying when it said it wouldn't reveal them because of state secrets. It doesn't want to reveal them, because they reveal how the process almost certainly violates the 4th Amendment. Rather than protecting "national security," the attempts to hide the details of the list are very much about protecting "DOJ security."

Filed Under: doj, guidelines, gulet mohamed, leaks, no fly list, state secrets, watchlist

Why Was The DOJ So Fearful Of Its Terrorist Watchlist Guidelines Being Made Public?

from the not-because-it-helps-terrorists dept

Having already discussed The Intercept's publication of the federal government's guidelines for declaring people terrorists to put on its various watchlists (including the infamous "no fly list"), it's raising some serious questions about why the DOJ had been fighting so hard to keep these guidelines from coming out. As we've discussed, in basically any case challenging the various government watchlists, the DOJ has freaked out and claimed "state secrets" to try to get the cases thrown out entirely.

Just a few months ago, Attorney General Eric Holder directly claimed that revealing these guidelines would be helping the terrorists. In that legal filing, Holder does the "state secrets" dance and then says:

I agree with the FBI that the Watchlisting Guidance, although unclassified, contains national security information that, if disclosed, for the reasons discussed in the FBI's classified declaration, could cause significant harm to national security.... If the Guidance were released, it would provide a clear roadmap to undermine the Government's screening efforts, a key counterterrorism measure, and thus, its disclosure reasonably could be expected to cause significant harm to national security.

Of course, now that the Watchlisting Guidance is out, we can take a look and see if that's actually true. And... Holder's statements, not surprisingly, appear to be completely bogus. The Guidelines are so vague and so broad that it gives no real indication of how to get around them or whether or not any particular person is likely to be placed on the list.

What the guidelines do show, however, is the level of extra scrutiny people on the list are subject to. And, as we noted, much of that certainly appears to violate the 4th Amendment (or, at the very least, open itself up to a pretty clear 4th Amendment challenge in the courts). So, once again, it seems like Holder's real reason to declare "state secrets" had little to do with "national security" and a hell of a lot to do with "DOJ security" in keeping its illegal and unconstitutional practices from further public and judicial scrutiny.

Filed Under: doj, eric holder, no fly list, terrorism watchlist, terrorist, tsdb, watchlist, watchlisting guidance

Revealed: What Kind Of 'Extra Scrutiny' The Government Gives To Folks On The Terrorist Watchlist

from the we're-about-to-go-through-your-lives dept

We've already written about The Intercept's publication of the US government's guidelines for declaring you a possible terrorist subject to extra scrutiny whenever you run into a government official. But we wanted to do a second post on the part that focuses on just what kind of extra scrutiny you get if you're on the list. Basically, it's dig through every aspect of this person's life that you can:

In addition to data like fingerprints, travel itineraries, identification documents and gun licenses, the rules encourage screeners to acquire health insurance information, drug prescriptions, “any cards with an electronic strip on it (hotel cards, grocery cards, gift cards, frequent flyer cards),” cellphones, email addresses, binoculars, peroxide, bank account numbers, pay stubs, academic transcripts, parking and speeding tickets, and want ads. The digital information singled out for collection includes social media accounts, cell phone lists, speed dial numbers, laptop images, thumb drives, iPods, Kindles, and cameras. All of the information is then uploaded to the TIDE database.

Screeners are also instructed to collect data on any “pocket litter,” scuba gear, EZ Passes, library cards, and the titles of any books, along with information about their condition—”e.g., new, dog-eared, annotated, unopened.” Business cards and conference materials are also targeted, as well as “anything with an account number” and information about any gold or jewelry worn by the watchlisted individual. Even “animal information”—details about pets from veterinarians or tracking chips—is requested. The rulebook also encourages the collection of biometric or biographical data about the travel partners of watchlisted individuals.

In the wake of last month's Wurie decision at the Supreme Court, I'm curious how much of that is now violating the subject's 4th Amendment rights... It seems likely that at least someone is going to challenge these rules.

Filed Under: extra scrutiny, no fly list, terrorism, terrorists, tsa, tsdb, watchlist

The Intercept Reveals The US Government's Guidebook For Declaring You're A Terrorist Or Putting You On The No Fly List

from the because-you-just-might-be-a-terrorist dept

Jeremy Scahill and Ryan Deveraux, over at The Intercept have a giant scoop: the full 166-page guidebook that US law enforcement uses to declare someone a terrorist who deserves to be on one of its various watchlists from the no-fly list to the "terrorist screening database." We've had plenty of stories about the no fly list and the TSDB, and the ridiculous lengths that the US government has gone to to keep anyone from knowing if or why they're in any of these databases -- leading to a series of lawsuits from individuals who were put on that list under very questionable circumstances.

We were happy last month to see that the process for getting off of these watchlists was declared unconstitutional, but the lawsuits over these watchlists suggest that they are prone to abuse and error. We were particularly disturbed to find out in a recent lawsuit that the US government actually has a secret exception to reasonable suspicion for putting people on the list.

The document released by The Intercept is quite revealing, and shows that President Obama has massively expanded the criteria for getting people onto the list. In fact, as the report notes, the President "quietly approved" an expansion "authorizing a secret process that requires neither “concrete facts” nor “irrefutable evidence” to designate an American or foreigner as a terrorist."

The new guidelines allow individuals to be designated as representatives of terror organizations without any evidence they are actually connected to such organizations, and it gives a single White House official the unilateral authority to place “entire categories” of people the government is tracking onto the no fly and selectee lists. It broadens the authority of government officials to “nominate” people to the watchlists based on what is vaguely described as “fragmentary information.” It also allows for dead people to be watchlisted.

As you might imagine, given all the stories about people being put on various watchlists even though they're clearly not terrorists, the guidelines are crazy expansive:

The document’s definition of “terrorist” activity includes actions that fall far short of bombing or hijacking. In addition to expected crimes, such as assassination or hostage-taking, the guidelines also define destruction of government property and damaging computers used by financial institutions as activities meriting placement on a list. They also define as terrorism any act that is “dangerous” to property and intended to influence government policy through intimidation.

And obviously this goes way beyond just boarding (or not boarding) airplanes. As the report notes, if you're pulled over for speeding and the police run your name, if you're on the watchlist, the police will get a notification, leading them to automatically think that you're a suspected terrorist. The guidelines also contradict themselves directly. At first it says that:

To meet the REASONABLE SUSPICION standard, the NOMINATOR, based on the totality of the circumstances, must rely upon articulable intelligence or information which, taken together with rational inferences from those facts, reasonably warrants a determination that an individual is known or suspected to be or has been knowingly engaged in conduct constituting, in preparation for, in aid of, or related to TERRORISM and/or TERRORIST ACTIVITIES.

Okay. So you need to have a factual basis for reasonable suspicion, right? Wrong:

In determining whether a REASONABLE SUSPICION exists, due weight should be given to the specific reasonable inferences that a NOMINATOR is entitled to draw from the facts in light of his/her experience and not on unfounded suspicions or hunches. Although irrefutable evidence or concrete facts are not necessary, to be reasonable, suspicion should be as clear and as fully developed as circumstances permit.

So, it can't just be a hunch. It has to be a really good hunch seems to be the lesson.

The report also likely reveals the "secret" exceptions to reasonable suspicion that the judge refused to reveal in the Rahinah Ibrahim case we wrote about. She was kept on the watchlist despite there being no reasonable suspicion. One of the exceptions is the "family member" loophole (which some had suggested was likely the issue in the comments to our story about Ibrahim). But it appears the exceptions are much broader:

There are a number of loopholes for putting people onto the watchlists even if reasonable suspicion cannot be met.

One is clearly defined: The immediate family of suspected terrorists—their spouses, children, parents, or siblings—may be watchlisted without any suspicion that they themselves are engaged in terrorist activity. But another loophole is quite broad—”associates” who have a defined relationship with a suspected terrorist, but whose involvement in terrorist activity is not known. A third loophole is broader still—individuals with “a possible nexus” to terrorism, but for whom there is not enough “derogatory information” to meet the reasonable suspicion standard.

And then there's the fact that the new "threat-based expedited upgrade" program, which was put in place following the US failing to notice that the famed "underwear bomber" got on his plane despite being on the watchlist. So, rather than recognize that the list was broken, the administration just added a new category, allowing a single White House official the unilateral power to elevate entire "categories of people" into a special list for extra scrutiny.

This extraordinary power for “categorical watchlisting”—otherwise known as profiling—is vested in the assistant to the president for homeland security and counterterrorism, a position formerly held by CIA Director John Brennan that does not require Senate confirmation.

The rulebook does not indicate what “categories of people” have been subjected to threat-based upgrades. It is not clear, for example, whether a category might be as broad as military-age males from Yemen. The guidelines do make clear that American citizens and green card holders are subject to such upgrades, though government officials are required to review their status in an “expedited” procedure. Upgrades can remain in effect for 72 hours before being reviewed by a small committee of senior officials. If approved, they can remain in place for 30 days before a renewal is required, and can continue “until the threat no longer exists.”

Basically, as most people suspected, it appears the government has broad and, until now, secret powers to effectively ruin someone's life by placing them on one of these watchlists... with no legitimate way to get off.

Filed Under: dhs, doj, guidebook, no fly list, reasonable suspicion, terorrism, terrorist watchlist, tsdb, us government, watchlist

White House Spokesperson Insists Obama Is The Most Transparent President In History, Because... Visitor Logs!

from the you-said-what-now? dept

The rather astoundingly named Josh Earnest is the recently appointed press secretary of President Obama, and he's kicked off his tenure with quite a whopper: insisting that, despite complaints from basically every corner, President Obama really is "the most transparent President in history." As you may recall, President Obama promised upon election that he would be "the most open and transparent" President, and one of his first orders of business in the White House was to promise the same.

Of course, as many folks have been documenting for years, the reality has been anything but. The Obama administration has been ridiculously secretive for years, when it comes to FOIA requests, literally setting records in denying them. The NYT's former executive editor, who has covered many administrations, has directly noted that the Obama administration was the most secretive she could recall. Even federal judges have regularly dinged the administration for refusing to hand over documents required by law. As Stephen Colbert has noted, the administration is really only good at the most transparent bullshit legally allowed.

In fact, just as Mr. Earnest was insisting that the Obama administration was so damn transparent, Mother Jones had a good article about how often the Obama administration was making use of the "state secrets privilege" to get lawsuits tossed out, such as in various no fly list challenges. In 2008, then candidate Obama insisted that the use of the state secrets privilege by the government was dangerous. But, now that he's in charge, he's quick to use it himself:

In 2008, Obama griped that the Bush administration invoked the state secrets privilege "more than any other previous administration" and used it to get entire lawsuits thrown out of court. Critics noted that deploying the state secrets privilege allowed the Bush administration to shut down cases that might have revealed government misconduct or caused embarrassment, including those regarding constitutionally dubious warrantless wiretapping and the CIA's kidnapping and torture of Khaled el-Masri, a German car salesman the government had mistaken for an alleged Al Qaeda leader with the same name. After Obama took office, his attorney general, Eric Holder, promised to significantly limit the use of this controversial legal doctrine. Holder vowed never to use it to "conceal violations of the law, inefficiency, or administrative error" or "prevent embarrassment to a person, organization, or agency of the United States Government."

Despite this promise, Obama continued to assert the privilege to squelch cases about Bush-era abuses. In one instance, the Justice Department scuttled a lawsuit brought by a man who claimed he had been kidnapped by the CIA and had his penis and testicles cut with a scalpel in a Moroccan prison. And now Obama is broadening the use of this legal maneuver: In the past 18 months, the Obama administration has twice cited state secrets to prevent federal courts from considering lawsuits challenging its use of the no-fly list.

So, given all this evidence that the Obama administration is incredibly secretive, what could Earnest's reasoning possibly be? Well, you see, President Obama has released his visitor logs at the White House. Because, you know, that's what everyone really means when they talk about White House transparency.

Earnest noted that previous administrations had “gone to the Supreme Court” to prevent the release of White House visitor information, but that the Obama administration “releases it voluntarily on the Internet on a quarterly basis.”

“Reporters for years clamored to get access to fundraisers the president hosted or attended that were hosted in private homes,” Earnest continued. “Reporters now have access to those when this president goes to a private home.”

So, the President has made a few tiny concessions to transparency on issues that really don't matter at all, but has doubled down on secrecy on the things that do actually matter.

Sure, I know that the Press Secretary's job is to basically cover for the President and do whatever possible to defend the White House's claims, no matter how bogus, but wouldn't the world be better off if there were actually a tiny bit of honesty from such folks? They could admit that they've tried and failed. They could say that transparency promises seemed easier from the outside, but turned out to be more difficult in reality. They could admit that it's still a work in progress. Any of those would at least acknowledge reality. Pretending reality isn't reality doesn't convince anyone. In fact, it just appears to be yet another example of the very non-transparency that everyone's complaining about in the first place.

Filed Under: barack obama, foia, josh earnest, no fly list, secrecy, state secrets, transparency, visitor logs, white house

Court Says The Process For Getting Off The No Fly List Is Unconstitutional

from the well-that's-a-big-deal dept

We've had a few stories recently about legal challenges to the No Fly List in the United States. Just a couple months ago, for the first time, the US government was ordered to tell someone they were not on the No Fly List, though that person was still kept in various other terrorist watch lists/databases. Soon after that, we wrote about a new legal challenge to the No Fly List, involving some men who were basically harassed, with the FBI threatening to put them on the No Fly List if they didn't become informants.

However, in a very big ruling today, a district court judge in Oregon has basically found the process of getting off the No Fly List unconstitutional. According to the ACLU, who handled the case on behalf of 13 Americans who were on the list:

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.

The full ruling is worth reading as it goes into significant detail and analysis, including digging into the Rahinah Ibrahim case we mentioned above. In the end, the court is pretty clear that putting someone on the No Fly List clearly deprives them of their rights:

In summary, on this record the Court concludes the DHS TRIP process presently carries with it a high risk of erroneous deprivation in light of the low evidentiary standard required for placement on the No-Fly List together with the lack of a meaningful opportunity for individuals on the No-Fly List to provide exculpatory evidence in an effort to be taken off of the List.

Of particular importance is the fact that people placed on the list are not told about it, let alone told why they've been put on the list. And when combined with the "low evidentiary standard" mentioned above, the court sees a problem:

Defendants' failure to provide any notice of the reasons for Plaintiffs' placement on the No-Fly List is especially important in light of the low evidentiary standard required to place an individual in the TSDB in the first place. When only an ex parte showing of reasonable suspicion supported by "articulable facts taken together with rational inferences" is necessary to place an individual in the TSDB, it is certainly possible, and probably likely, that "simple factual errors" with "potentially easy, ready, and persuasive explanations" could go uncorrected.

Given all that, the court has significant problems with the overall nature of the program:

As discussed herein at length, the DHS TRIP process does not provide a meaningful mechanism for travelers who have been denied boarding to correct erroneous information in the government's terrorism databases. A traveler who has not been given any indication of the information that may be in the record does not have any way to correct that information. As a result, the DHS TRIP process "entirely fail[s] to consider an important aspect" of Congress's instructions with respect to travelers denied boarding because they are on the No-Fly List.

The Court doesn't toss out the program, but orders DHS to "remedy" the situation by coming up with a new process to guarantee that people on the No Fly List have due process to get off the list. There still are reasonable questions as to how such a general list could be legal at all in the first place, but this ruling would seem to take a big step towards at least allowing a real process to be in place to get people off the list. Of course, it's fairly likely that the US government will appeal this ruling, but at least this is a small bit of good news in the meantime.

Filed Under: dhs, due process, homeland security, no fly list