PORTLAND, Ore. (AP) — The U.S. government offers no
adequate method for people to challenge their placement on its no-fly
list, a federal judge ruled Tuesday in a case involving 13 Muslims who
believe they’re on the list.
U.S. District Court Judge Anna Brown
found people lack a meaningful way to challenge their placement on the
list, which bars them from flying to or within the United States. She
also said the 13 people who sued the government have been
unconstitutionally deprived of their right to fly.
"This should
serve as wakeup call to the government," said American Civil Liberties
Union attorney Hina Shamsi. "This decision also benefits other people
wrongly stuck on the no-fly list because it affords them (an opportunity
to challenge) a Kafkaesque bureaucracy."
U.S. Justice Department spokeswoman Dena Iverson said government attorneys were reviewing the decision.
Thirteen people — including four military veterans — challenged their placement on the list in 2010.
Initially,
Brown said she couldn’t rule on the case. In 2012, the 9th U.S. Circuit
Court of Appeals disagreed and sent the case back to her. Brown ruled
in August that the 13 people challenging their presence on the list had a
constitutional right to travel and, on Tuesday, found the government
violated that right.
"For many," Brown wrote in Tuesday’s
decision, "international travel is a necessary aspect of liberties
sacred to members of a free society."
The judge said placement on
the no-fly list turns routine travel into an "odyssey," and some of
those on the list have been subjected to detention and interrogation by
foreign authorities.
The no-fly list, a well-protected government
secret, decides who is barred from flying at U.S. airports, and is
shared with ship captains and 22 other countries. The FBI has said the
list requires secrecy to protect sensitive investigations and to avoid
giving terrorists clues for avoiding detection.
The no-fly list
contains thousands of names and has been one of the government’s most
public counterterrorism tools since 9/11. It also has been one of the
most condemned, with critics saying some innocent travelers have been
mistaken for terrorism suspects.
The plaintiffs argued being on
the list harms their reputations. Several who filed suit said they have
been surrounded at airport security areas, detained and interrogated.
Brown
expressed skepticism at the government’s arguments in several court
hearings in 2013 and earlier this year. U.S. government attorneys
cautioned the judge not to engage in "policymaking" were she to rule
against them.
The ruling shows Brown heeded that caution. She did
not create a new procedure for those on the list to challenge their
placement. Instead, Brown said the Department of Homeland Security needs
to find a way to disclose to those on the list the unclassified
information used to place them there.
Since much of what is used
for placement is classified, Brown said the government should provide
people on the list with the nature and extent of the classified
information, the type of threat they pose to national security, and the
ways in which they can respond to the charges.
Her suggestions for
an overhaul of the system hewed closely to those prescribed by the 9th
Circuit in a separate case involving an Islamic charity.
The
process "does not provide a meaningful mechanism for travelers who have
been denied boarding to correct erroneous information in the
government’s terrorism databases," Brown ruled.
In January, a
California woman successfully challenged her placement on the list, but
the ruling did not address the broader constitutional implications.
