No-fly list processes ruled a no-no

In one of the most significant cases to challenge the no-fly list a group of 13 plaintiffs have won a case against the FBI and its Terrorist Screening Center. At the core of the complaint was that the 13 were supposedly listed in the Terrorist Screening Database (aka the no-fly list) but that no one would officially confirm to them that they were in the database, why they might be or how to appeal their possible inclusion there. Citing a violation of the 5th amendment’s due process clause the suit was brought in 2010.

As a result of the ruling (and pending appeal) the government is required to revamp the processes surrounding the list/database. It is important to note that the concept of the no-fly list has not been ruled against; the list can exist. But the processes surrounding it are fatally flawed according to the ruling. It is these processes which must be updated.

In addressing the complaints the Court held that air travel is different when it comes to international routes versus domestic ones because of the timing and challenges involved with alternate means of transit. And given that one of the plaintiffs was denied passage by boat, allegedly at the behest of the US Customs & Border Patrol, it seems that those alternate means aren’t necessarily viable anyways.

Although there are viable alternatives to flying for domestic travel within the continental United States such as traveling by car or train, the Court disagrees with Defendants’ contention that international air travel is a mere convenience in light of the realities of our modern world. Such an argument ignores the numerous reasons that an individual may have for wanting or needing to travel overseas quickly such as the birth of a child, the death of a loved one, a business opportunity, or a religious obligation. …

With perhaps the exception of travel to a small number of countries in North and Central America, a prohibition on flying turns routine international travel into an odyssey that imposes significant logistical, economic, and physical demands on travelers. …

The Court concludes international travel is not a mere convenience or luxury in this modern world. Indeed, for many international travel is a necessary aspect of liberties sacred to members of a free society. …

Accordingly, on this record the Court concludes Plaintiffs’ inclusion on the No-Fly List constitutes a significant deprivation of their liberty interests in international travel.

This is, to me, a HUGE win for the public. It makes clear that travel is a very real right and that, in many cases, the ability to travel by air is critical in today’s world. The government has long tried to argue that so long as alternate means of travel were available the no-fly list was not a sufficient hindrance to be ruled against. In this order the court clearly disagrees (repeatedly).

The redress process was excoriated by the ruling.  The Court found so many flaws that it is hard to pick which ones deserve to be highlighted. Among the challenges made by the court is a particularly negative view of the administrative review process based on low standard of inclusion and the part where there is no additional evidence added for such reviews.

In any event, the DHS TRIP process suffers from an even more fundamental deficiency. As noted, the reasonable suspicion standard used to accept nominations to the TSDB is a low evidentiary threshold. This low standard is particularly significant in light of Defendants’ refusal to reveal whether travelers who have been denied boarding and who submit DHS TRIP inquiries are on the No-Fly List and, if they are on the List, to provide the travelers with reasons for their inclusion on the List. …

Accordingly, on this record the Court concludes the DHS TRIP redress process, including the judicial review of DHS TRIP determinations, contains a high risk of erroneous deprivation of Plaintiffs’ constitutionally-protected interests.

And, later in the ruling:

While judicial review provides an independent examination of the existing administrative record, that review is of the same one-sided and potentially insufficient administrative record that TSC relied on in its listing decision without any additional meaningful opportunity for the aggrieved traveler to submit evidence intelligently in order to correct anticipated errors in the record. …

As discussed herein at length, the DHS TRIP process does not provide a meaningful mechanism for travelers who have been denied boarding to correct erroneous information in the government’s terrorism databases. A traveler who has not been given any indication of the information that may be in the record does not have any way to correct that information. As a result, the DHS TRIP process “entirely fail[s] to consider an important aspect” of Congress’s instructions with respect to travelers denied boarding because they are on the No-Fly List. Mfrs. Ass’n, 463 U.S. at 43.

Accordingly, on this record the Court concludes the DHS TRIP process violates § 706 (2) (A) of the APA.

And so, what will be required of the Feds? A significant rebuilding of the processes surrounding the list. The Court did not mandate the exact details of the new systems but it did make clear the level to which they expect changes to be made.

Although the Court holds Defendants must provide a new process that satisfies the constitutional requirements for due process, the Court concludes Defendants (and not the Court) must fashion new procedures that provide Plaintiffs with the requisite due process described herein without jeopardizing national security.

Because due process requires Defendants to provide Plaintiffs (who have all been denied boarding flights and who have submitted DHS TRIP inquiries without success) with notice regarding their status on the No-Fly List and the reasons for placement on that List, it follows that such notice must be reasonably calculated to permit each Plaintiff to submit evidence relevant to the reasons for their respective inclusions on the No-Fly List. In addition, Defendants must include any responsive evidence that Plaintiffs submit in the record to be considered at both the administrative and judicial stages of review.

In other words passengers must be informed that they are included on the list and, to a reasonable extent, told why. There is still an allowance for classified information to not be shared publicly but that data can be disclosed to “properly-cleared counsel” should such requests be made.

Such a requirement is a massive shift in policy and one which squarely returns some sense of humanity and balance to the process. Yes, it is still possible for the government to have such a list and to deny people the right to travel by air. But if they choose to do so they must now also inform the affected person and even tell them why they’re on the list, including real evidence. Combined with the stance that international travel by air is a “necessary aspect of liberties sacred to members of a free society” and I cannot be happier with this ruling. Hopefully it holds.