The “No-Fly List” and Due Process

The "No-Fly List" and Due ProcessA U. S. District Court judge issued a first-of-its-kind ruling directing the federal government to change its “no-fly-list” notices and procedures in furtherance of due process and international travel as “a necessary aspect of liberties sacred to members of a free society.”

The FBI Terrorist Screening Database includes a list of individuals barred from boarding commercial aircraft within the U. S. and from flying within U. S airspace even if their flights originate outside the U. S. Names are typically contributed to this “no-fly list” by law enforcement agencies based on “reasonable suspicion” that individuals are known or suspected terrorists. The list supposedly includes 20,000+ people, 500+ of whom are U. S. citizens.

Federal authorities do not usually tell individuals that they are on the “no-fly list” or why they are on the list. Consequently, many individuals first discover that they are on the list when they attempt to board an aircraft. A person on the “no-fly list” can challenge it by filing a complaint or request for “redress” the Homeland Security here:https://trip.dhs.gov/ The redress process does not offer a hearing at which an individual can present evidence; rather, Homeland Security reviews the situation but will not confirm/deny the individual’s presence on the no-fly list and does not provide reasons for the person’s presence/absence. If Homeland Security believes inclusion on the list is appropriate, the individual can try to overturn that decision by suing in federal district court. The federal court can review the reasons for the person’s inclusion but will not advise the person of those reasons. As you can imagine, successfully appealing a Homeland Security decision is tough-to-impossible if you don’t know the reasons for the decision.

The difficulties posed by the no-fly list led to a federal lawsuit by 13 U. S. citizens and lawful residents, including 4 military veterans. Filed in 2010 by the ACLU, Latif v. Holder (Eric Holder being the U.S. Attorney General) has resulted in key decisions to date. In 2013, the judge ruled that U.S. residents have a constitutionally protected right to travel by air in international markets. On June 24, 2014 the judge ruled that: the redress process presents a high risk of depriving innocent people of their “protected interests”; passengers must be given notice of inclusion on the no-fly list, the rationale for their inclusion and the opportunity to submit evidence challenging their inclusion; the government must develop new procedures protecting due process rights without jeopardizing national security.

The case is far from over, as the parties were given until July 14, 2014 to file a Joint Status Report; then the court will schedule a Status Conference. Whatever the ultimate outcome of this case, the judge’s ruling remains the first of its kind.

By Kathy Catanzarite


Source: Kathy Catanzarite – Handelonthelaw.com Staff Writer

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