The government does not have the unchecked authority to place individuals on a secret blacklist without providing them any meaningful opportunity to object, the ACLU argued in a brief filed last Friday with the federal district court in Oregon.
We made the filing in Latif v. Holder, our lawsuit asserting that the government violated the Fifth Amendment due process rights of 13 Americans, including four military veterans, by placing them on the No Fly List and refusing to give them any after-the-fact explanation or a hearing at which they can clear their names.
Our brief highlighted the utter irrationality of the government’s No Fly List procedures. The plaintiffs in Latif all flew for years without any problems. But more than two years ago, they were suddenly branded as suspected terrorists based on secret evidence, publicly denied boarding on flights, and told by U.S. and airline officials that they were banned from flying perhaps forever. Each of them asked the government to remove them from the No Fly List through the only “redress” mechanism available—the Department of Homeland Security Traveler Redress Inquiry Program. But the government has refused to provide any explanation or basis for their inclusion in the list. Our clients have been stuck in limbo ever since.
We submitted evidence to the court showing that the No Fly List burdens our clients’ constitutionally protected liberties, with devastating consequences for their personal and professional lives. It deprives them of the ability to fly—an essential means of travel in modern life. It also stigmatizes them as suspected terrorists, although they have never been charged with any crime, let alone convicted of one.
Our brief argued that the Constitution’s core promise of procedural due process requires the government to provide at least some explanation and some hearing where Americans can defend themselves after it deprives them of their liberties. The government’s categorical refusal to provide either is unconstitutional. We explained:
Defendants’ refusal to provide the bare rudiments of due process stems from their embrace of an explicit policy—known as the “Glomar” policy—of refusing to confirm or deny any information concerning a person’s status on the No Fly List. The Glomar policy and Defendants’ inadequate process cannot be reconciled with governing due process doctrine. Courts routinely require notice and some form of hearing for much less severe deprivations of liberty than Plaintiffs have suffered. Thus, the government cannot suspend a student from school for ten days, or recover excess Social Security payments, or terminate state assistance for utility bills without some kind of notice and hearing.
In its own brief to the court defending its “redress” program, the government’s arguments boiled down to two sweeping—and extraordinary—claims. First, according to the government, the Constitution has nothing to say about the adequacy and fairness of the procedures the government provides Americans to challenge their inclusion on the No Fly List because “alternatives” to flying are available. We countered that argument in a separate brief (also filed on Friday) showing that the government relied on the wrong law, and by providing evidence confirming what is obvious: the No Fly List so severely restricts Americans’ ability to travel that it triggers due process rights. Not only does the list ban Americans from the skies, it even bars them from travel on boats. As a result, two of our clients have been effectively banned from traveling from the United States to be with their families in Ireland and Yemen.
The government’s second sweeping claim is that even confirming or denying No Fly List-status (much less actually providing notice of the reasons and basis for inclusion in the list) will cause a parade of national security horribles, including the disclosure of sensitive or classified information. Our brief, however, showed that this argument is based on a fiction: all of our clients already know they are on the No Fly list; they were each prevented from flying and explicitly told that they are on the list. We also pointed out that the mere possibility that sensitive national security information might be involved is no reason to categorically foreclose the hearings that due process requires.
Americans have a right to know what kind of “evidence” or innuendo is sufficient to land them on the No Fly List, and to have a hearing where they can defend themselves. Without this bare minimum, there is no meaningful check to correct the government’s mistakes or ensure that it uses the blacklisting power it claims fairly and appropriately. We are asking the court, therefore, to vindicate a basic yet fundamentally important proposition: a government black list that denies Americans the ability to fly without giving them an explanation or fair chance to clear their names violates the Constitution.
Rahinah Ibrahim, a citizen of Malaysia who earned a Ph.D. in construction engineering and management at Stanford University, sued the U.S. government after she was prevented from flying out of San Francisco International Airport in January 2005. Transportation Security Administration (TSA) authorities informed Ibrahim that her name was on the special list that denies those suspected of terrorist ties from flying on commercial airliners.
She was arrested, handcuffed, and placed in a holding cell for two hours, but eventually told she could go. She was also told that her name was removed from the no-fly list.
The next day, however, Ibrahim learned her name had not been removed from the list. Nevertheless, TSA officials allowed her to board her flight for Malaysia. Her visa was revoked and she was denied reentry into the U.S.
Her lawsuit has slowly made its way through the federal courts. The government has tried more than once to have the litigation thrown out, claiming Ibrahim lacked the legal standing to pursue her case.
Earlier this year, the Ninth Circuit Court of Appeals said Ibrahim had the right to continue her legal fight. Still, government attorneys tried again to derail the case, this time by submitting confidential records for the judge to review, but not for Ibrahim’s legal defense to see.
Judge William Alsup objected to the government’s tactic. He wrote: “Here the government seeks to affirmatively use allegedly privileged information to dispose of the case entirely without ever revealing to the other side what its secret evidence might be.”
“In sum, only in the rarest of circumstances should a district judge, in his or her discretion, receive an ex parte argument and evidence in secret from only one side aimed at winning or ending a case over the objection of the other side,” Alsup added. “Here, the government has not justified its sweeping proposal. It has gone so far as even to redact from its table of authorities some of the reported case law on which it relies! This is too hard to swallow.”
Ibrahim is currently dean of the Faculty of Design and Architecture at Universiti Putra Malaysia.
To Learn More:
Feds Blasted for Trying Dismiss Case in Secret ( by Chris Marshall, Courthouse News Service )