ACLU Comment on Appeals Court Ruling in No Fly List Challenge

A federal appeals court today rejected four U.S. citizens' requests for a fair process to clear their names from the government's No Fly List. The four men have never been charged with a crime. Each has been barred from flying for more than nine years. The decision came in an American Civil Liberties Union lawsuit, Kashem v. Barr, on behalf of clients who challenged both the government's criteria for placing people on the No Fly List and its revised procedures for people seeking removal from it.

"This decision lets the government hide behind overblown secrecy claims to deny our clients' constitutional right to due process," said Hina Shamsi, director of the ACLU's National Security Project. "Our clients have been unable to fly to visit family, pursue job opportunities, or fulfill religious obligations for over nine years based on vague criteria, secret evidence, and unreliable government predictions. These citizens have never been charged with a crime and asked for fair notice and a fair process to clear their names and regain rights most Americans take for granted. Instead, the court has left them trapped in an indefinite Kafkaesque nightmare."

The government was previously forced to revise its procedures for people to challenge their placement on the No Fly List as a result of an earlier ruling in this case. In 2014, the district court ruled that the government's original procedures were "wholly ineffective" and violated the Fifth Amendment's guarantee of due process. The court required the government to revise its procedures to confirm whether people were placed on the No Fly List, give reasons for their placement, and provide a meaningful opportunity to challenge the reasons. The government then notified seven of the ACLU's original clients that they were cleared to fly.

The remaining ACLU plaintiffs challenged the revised procedures in 2015, arguing that the government again failed to remedy constitutional defects. They explained that the government's stigmatizing allegations were based on secret reasons, unreliable second-hand assertions, and secret evidence they could not meaningfully contest. The plaintiffs sought all the reasons for their placement on the No Fly List, the basis for any reasons, and a meaningful opportunity to dispute the placement before a neutral decision-maker. They also challenged the government's criteria for placing people on the List as unconstitutionally vague. One of the plaintiffs is now represented by separate lawyers.

The No Fly List is a secret government database of people--many of whom have not been charged with a crime--that the government has barred from flying in or over U.S. airspace. The government has said that as of June 2016, there were approximately 81,000 people on the No Fly List, of whom approximately 1,000 were American citizens or legal residents. The No Fly List is a subset of a larger terrorism watchlist, which as of 2017 had ballooned to approximately 1.2 million people, of whom about 5,000 are American citizens or legal residents.

The ACLU has criticized the government's entire terrorism watchlisting system, which includes the No Fly List, as discriminatory and an overbroad and an ineffective waste of resources. The system is not predicated on actual criminal wrongdoing but instead relies heavily on vague and overbroad criteria and racial and religious profiling.

The ruling is here: https://www.aclu.org/legal-document/kashem-et-al-v-barr-et-al-opinion.