MANHATTAN – A Muslim man says he has been unable to visit his ailing mother for over two years because he refused to spy for the FBI and is now on the no-fly list.
Muhammad Tanvir says he is not the only one who the FBI unlawfully placed on the no-fly list “in retaliation for their refusal to work as informants against their communities and submit to questioning.”
The Queens man says his predicament has left him unable to visit his ailing mother in Pakistan for over two years, and that it has burdened his practice of Islam.
He notes that he is a lawful permanent resident employed at a 99-cent store in the Bronx who has “never been convicted of a crime nor does he pose any threat to aviation safety.”
The FBI declined to comment.
Though the no-fly list is supposed to represent a list of suspected terrorists, the American Civil Liberties Union calls it “a draconian tool to coerce Americans into spying on their communities.” In this case, Tanvir is represented by Shayana Kadidal with the Center for Constitutional Rights.
After refusing FBI agents’ request that he serve as an informant in his predominantly Muslim community and landing on the no-fly list, Tanvir says he reached out to the FBI to clear things up. Instead of helping, FBI agents offered to take him off the list in exchange for information.
Tanvir, who has lived in the United States since 2002, again refused.
“Mr. Tanvir has been prevented from flying despite the fact that he does not present any threat to aviation security,” the lawsuit states. “Instead, defendants sought to exploit the draconian burden posed by the No Fly List – including the inability to travel for work, or to visit family overseas – in order to coerce him into serving the FBI as a spy with American Muslim communities and places of worship.”
Named as defendants are FBI Director James Comey; Terrorist Screening Center Director Christopher Piehota; Acting Secretary of Homeland Security Rand Beers; and Transportation Security Administration Administrator John Pistole.
The FBI agencies are responsible maintaining the Terrorist Screening Database, which includes the no-fly list.
Tanvir wants the court to declare as unconstitutional the FBI’s alleged practice of placing people on the no-fly list for not cooperating, then using an offer to remove them as a bribe for information.
He also wants off the list, along with damages.
A federal court took a critically important step late yesterday towards placing a check on the government’s secretive No-Fly List. In a 38-page ruling in Latif v. Holder, the ACLU’s challenge to the No-Fly List, U.S. District Court Judge Anna Brown recognized that the Constitution applies when the government bans Americans from the skies. She also asked for more information about the current process for getting off the list, to inform her decision on whether that procedure violates the Fifth Amendment guarantee of due process.
We represent 13 Americans, including four military veterans, who are blacklisted from flying. At oral argument in June on motions for partial summary judgment, we asked the court to find that the government violated our clients’ Fifth Amendment right to due process by barring them from flying over U.S. airspace – and smearing them as suspected terrorists – without giving them any after-the-fact explanation or a hearing at which to clear their names.
The court’s opinion recognizes – for the first time – that inclusion on the No-Fly List is a draconian sanction that severely impacts peoples’ constitutionally-protected liberties. It rejected the government’s argument that No-Fly list placement was merely a restriction on the most “convenient” means of international travel.
Such an argument ignores the numerous reasons an individual may have for wanting or needing to travel overseas quickly such as for the birth of a child, the death of a loved one, a business opportunity, or a religious obligation.
According to the court, placement on the No-Fly List is like the revocation of a passport because both actions severely burden the right to international travel and give rise to a constitutional right to procedural due process:
Here it is undisputed that inclusion on the No-Fly List completely bans listed persons from boarding commercial flights to or from the United States or over United States air space. Thus, Plaintiffs have shown their placement on the No-Fly List has in the past and will in the future severely restrict Plaintiffs’ ability to travel internationally. Moreover, the realistic implications of being on the No-Fly List are potentially far-reaching. For example, TSC [the Terrorist Screening Center] shares watchlist information with 22 foreign governments and United States Customs and Boarder [sic] Protection makes recommendations to ship captains as to whether a passenger poses a risk to transportation security, which can result in further interference with an individual’s ability to travel as evidenced by some Plaintiffs’ experiences as they attempted to travel abroad by boat and land and were either turned away or completed their journey only after an extraordinary amount of time, expense, and difficulty. Accordingly, the Court concludes on this record that Plaintiffs have a constitutionally-protected liberty interest in traveling internationally by air, which is affected by being placed on the list.
The court also found that the government’s inclusion of our clients on the No-Fly List smeared them as suspected terrorists and altered their ability to lawfully board planes, resulting in injury to another constitutionally-protected right: freedom from reputational harm.
The importance of these rulings is clear. Because inclusion on the No-Fly List harms our clients’ liberty interests in travel and reputation, due process requires the government to provide them an explanation and a hearing to correct the mistakes that led to their inclusion. But under the government’s “Glomar” policy, it refuses to provide any information confirming or denying that our clients are on the list, let alone an after-the-fact explanation and hearing.
The court has asked the ACLU and the government for more information about the No-Fly List redress procedure to help it decide the ultimate question of whether that system violates the Fifth Amendment right to due process. We are confident the court will recognize that the government’s “Glomar” policy of refusing even to confirm or deny our clients’ No-Fly List status (much less actually providing the reasons for their inclusion in the list) is fundamentally unfair and unconstitutional.
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 )