Anti-terrorist 'no-fly' list can be challenged, US judge rules

Thousands of individuals, including hundreds of Americans, have found themselves on the US government's 'no-fly' list. A federal judge says they have a right to more effectively challenge that listing.

Rick Bowmer/AP
Portland, Ore., Imam Mohamed Sheikh Abdirahman Kariye, who is one of those who say their rights were violated because they are on the US government's no-fly list, leaves the United Sates Court of Appeals in May, 2012.

For thousands of air travelers in the United States, the years since 9/11 have become a bureaucratic black hole. These are the individuals on the US government’s secret “no-fly list” – reportedly some 20,000 people, including 500 US citizens.

Stopped at airports, they have been interrogated under the presumption that they might present a national security threat, bumped from their ticketed flights, and prevented from US air travel in the future. Except they are not told why, and they have had no effective means of challenging the restrictions on their travel.

This week, US District Court Judge Anna Brown in Portland, Ore., ruled that such individuals have a right under the US Constitution's "due process" provision to know more about the circumstances of their inclusion on the list and to have a more effective means of challenging that listing.

In her ruling, Judge Brown laid out the personal impact that being listed can have:

“Due to the major burden imposed by inclusion on the No-Fly List, Plaintiffs have suffered significantly, including long-term separation from spouses and children; the inability to access desired medical and prenatal care; the inability to pursue an education of their choosing; the inability to participate in important religious rites; loss of employment opportunities; loss of government entitlements; the inability to visit family; and the inability to attend important personal and family events such as graduations, weddings, and funerals.”

Being publicly confronted at airports “carries with it the stigma of being a suspected terrorist that is publicly disclosed to airline employees and other travelers near the ticket counter,” Judge Brown wrote.

“The Court concludes international travel is not a mere convenience or luxury in this modern world,” Judge Brown wrote, referring to individual rights enshrined in the US Constitution. “Indeed, for many, international travel is a necessary aspect of liberties sacred to members of a free society.”

The US government won't confirm that anyone is on the list, saying only that people are placed on the list when it has "reasonable suspicion to believe that a person is a known or suspected terrorist." Other cases have included a Somali teenager, who is a naturalized US citizen and a resident of Virginia detained by Kuwaiti authorities in 2011, and a Malaysian architecture professor.

In the Virginia case, the federal judge wrote that the government's no-fly list "transforms a person into a second-class citizen, or worse."

The Oregon case was brought by the American Civil Liberties Union (ACLU) on behalf of 13 American Muslims, four of them US military veterans.

One of the plaintiffs is Sheik Mohamed Abdirahman Kariye, imam of Portland’s largest mosque.

“Finally I will be able to challenge whatever incorrect information the government has been using to stigmatize me and keep me from flying,” Sheik Kariye said in a statement. “I have been prevented by the government from traveling to visit my family members and fulfill religious obligations for years, and it has had a devastating impact on all of us.”

Another plaintiff is Ibraheim Mashal, a US citizen and Marine Corps veteran, who is a traveling dog trainer unable to serve clients who are not within driving distance of his Illinois home because he is not allowed to board a plane.

“Two of the FBI agents who questioned me the day I was denied boarding asked me to speak to them again,” Mashal stated in a court declaration. “Because I had nothing to hide, I met with them on June 23, 2010. The agents again asked me deeply personal questions about my religious beliefs and practices, political opinions, and family. They told me that if I would help the FBI by serving as an informant my name would be removed from the No-Fly List and I would receive compensation. I told the agents that I did not feel comfortable answering their questions without my attorney present. The agents promptly ended the meeting.”

US Justice Department officials say they’re reviewing this week’s decision. Meanwhile, civil liberties advocates are hailing what they see as a big win for travelers stuck in a kind of limbo, unable to effectively challenge inclusion on the no-fly list.

“Our clients will finally get the due process to which they are entitled under the Constitution,” ACLU National Security Project Director Hina Shamsi, one of the attorneys who argued the case, said in a statement.

“This excellent decision also benefits other people wrongly stuck on the No Fly List, with the promise of a way out from a Kafkaesque bureaucracy causing them no end of grief and hardship,” Ms. Shamsi said. “We hope this serves as a wake-up call for the government to fix its broken watchlist system, which has swept up so many innocent people.”

One of the more celebrated people to be placed on the list was Yusuf Islam, the singer formerly known as Cat Stevens. He was on a flight from London to New York when he was taken off the plane in Bangor, Maine, in 2004 and returned to Britain. Two years later, he was allowed into the United States and says he was never given an explanation for why he was listed and de-listed, UPI reports.

The no-fly list has been seen as a particular affront to Muslims in the United States, including many US citizens.

"We welcome Judge Brown's ruling as a strong affirmation of the constitutional principle that rights, such as the right to travel freely, cannot be curtailed without due process of law," Nihad Awad, National Executive Director of the Council on American-Islamic Relations, said in a statement.

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