The United States government will now inform US citizens placed on the No Fly List whether they have, in fact, been put on the No Fly List and possibly some details related to the basis for the listing. But an attorney for an American challenging the government’s No Fly List authority has suggested that the changes are “meaningless.”
The new procedure comes after a federal court in Oregon ruled in June of last year that US citizens placed on the No Fly List had their rights to “procedural due process” violated and instructed the government to provide a “new process” that satisfied the “constitutional requirements for due process.”
In a case involving Gulet Mohamed, a US citizen who claims his constitutional rights were violated when he was placed on the No Fly List, the government informed the judge that this new procedure was now available to Mohamed and that the government would no longer refuse to confirm or deny whether Mohamed was listed [PDF].
“Under the newly revised procedures, a US person who purchases a ticket, is denied boarding at the airport, subsequently applies for redress through [the Department of Homeland Security Traveler Redress Inquiry Program (DHSTRIP)] 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.”
Should that person decide to receive and/or submit additional information, a second letter will be provided identifying the “specific criterion under which the individual was placed on the No Fly List.” It will have 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.”
The process may still be excessively secretive. The government indicated, “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.”
The TSA administrator will review the submissions and the information that the government is relying upon to place that person on the No Fly List. A final determination will be issued by the TSA with the basis for the outcome “to the extent feasible in light of national security and law enforcement interests at stake.” The person will also be informed that they may seek “further judicial review.”
Gadeir Abbas, who represents Mohamed, reacted, “What revisions have been made are essentially meaningless. While it’s an extremely minuscule step forward that the government is now willing to confirm whether or not someone is on the No Fly List, the fact remains that people on the No Fly List don’t need the government to tell them whether or not they are on that list because they find out for themselves when they try to fly.”
This does not “improve the constitutionality of the No Fly List,” according to Abbas. Furthermore, the government is only willing to identify the criteria under which a person has been listed. That criteria is “so broad as to actually communicate no meaningful information to allow a person to rebut the designation.”
Abbas does not think the government has resolved any of the outstanding issues in Mohamed’s case by making these changes and maintains the government should be providing notice to individuals before they are placed on the No Fly List.
Up until now, the government has sought to thwart judicial review by invoking the state secrets privilege to have cases involving the No Fly List dismissed. That is what the government has done in Mohamed’s case, despite the fact that Mohamed alleges FBI agents were complicit or involved in torture he experienced in Kuwait and that they used his listing to pressure him into becoming an informant.
The government consistently lost in court in 2014 when faced with challenges to the No Fly List. A judge found the government had denied a Malaysian, Dr. Rahinah Ibrahim, due process when she was a student studying in the United States. This led to the revelation that the government had been invoking state secrets to protect the fact that Ibrahim had been listed in “error” from becoming public.
That court decision helped ensure that the American Civil Liberties Union (ACLU) and the thirteen US citizens it represented would prevail in Oregon in June. And, before the year was over, the government had to notify seven Americans that they were no longer on the No Fly List.
While the new procedure will finally make it possible for an American to know whether he or she is actually on the No Fly List, these changes do not help American Muslims, who allege they were put on the list because they refused to become FBI informants. The government will be able to hide information from American Muslims if it, in fact, is the case that they were listed to pressure and intimidate them.
Back in January, the FBI suddenly had Gulet’s brother placed on the agency’s list of “Most Wanted Terrorists” the day before a major hearing on the government’s motion for summary judgment.
Government attorneys were able to use the designation against Gulet’s brother to stigmatize Gulet’s pursuit of redress for alleged rights violations.
It is telling that the government did not notify the court that the government could provide redress to Mohamed if he wanted much sooner in this case—like back in October when the ACLU’s clients were notified in letters addressed to them.
Hina Shamsi of the ACLU, who represented the thirteen Americans who challenged the No Fly List and won in June, indicated to the Washington Post that these changes fall “far short of constitutional requirements.” They deny “meaningful notice, evidence, and a hearing,” and the ACLU will continue to challenge the government’s No Fly List authority in court in Portland.
Faced with continued challenges to its authority, the government is scrambling to find an equilibrium that allows the government to block judicial review of the No Fly List and also convince judges they are providing due process to Americans on the list. But the government has not provided due process and agreed to notify individuals in a procedure that respects their rights so it will continue to struggle in these cases.
Note: The post and headline was revised to reflect and incorporate a quote from Mohamed’s attorney, Gadeir Abbas.