Secret Adjudications: the No Fly List, the Right to International Air Travel, and Procedural Justice?

Airplane_silhouette_SLatif v. Holder concerns the procedures owed individuals denied the right to travel internationally due to their inclusion in the Terrorist Screening database. Thirteen individuals sued the FBI, which maintains the No Fly list and the Terrorist Screening database. Four plaintiffs are veterans of the armed forces; others just have Muslim sounding names. All of the plaintiffs are U.S. citizens or lawful residents. The plaintiffs’ stories are varied but follow a similar trajectory. One plaintiff, a U.S. Army veteran, was not allowed to return to the U.S. from Colombia after visiting his wife’s relatives. Because he could not fly to the U.S., he missed a medical exam required for his new job. The employer rescinded his offer. Another plaintiff, a U.S. Air Force veteran, was in Ireland visiting his wife. He spent four months trying desperately to return to Boston. Denied the right to travel internationally, the thirteen plaintiffs lost jobs, business opportunities, and disability benefits. Important family events were missed. The plaintiffs could not travel to perform religious duties like the hajj. Some plaintiffs were allegedly told that they could regain their right to fly if they served as informants or told “what they knew,” but that option was unhelpful because they had nothing to offer federal officials. Plaintiffs outside the U.S. were allowed to return to their homes on a one-time pass. When back in the U.S., they turned to the TSA’s redress process (calling it “process” seems bizarre). The process involves filling out a form that describes their inability to travel and sending it via DHS to the Terrorist Screening Center. The Terrorist Screening Center says that it reviews the information to determine if the person’s name is an exact match of someone included in the terrorist database or No Fly list. All of the plaintiffs filed redress claims; all received DHS determination letters that neither confirmed nor denied their inclusion on the list. The letters basically told the plaintiffs nothing–they essentially said, we reviewed your claim, and we cannot tell you our determination. 

The plaintiffs sued the federal government on procedural due process and APA grounds. They argued that the DHS, FBI, and TSA deprived them of their right to procedural due process by failing to give them post deprivation notice or a meaningful chance to contest their inclusion in the terrorist database or No Fly list, which they have to presume as a factual matter based on their inability to travel though some of the plaintiffs were told informally that they appeared on the No Fly list. The standard Mathews v. Eldridge analysis determines the nature of the due process hearings owed individuals whose life, liberty, or property is threatened by agency action. Under Mathews, courts weigh the value of the person’s threatened interest, the risk of erroneous deprivation and the probable benefit of additional or substitute procedures, and the government’s asserted interests, including national security concerns and the cost of additional safeguards.

Most recently, the judge partially granted plaintiffs’ summary judgment motion, ordering further briefing set for September 9. In the August ruling, plaintiffs were victorious in important respects. The judge found that plaintiffs had a constitutionally important interest at stake: the right to fly internationally. As the judge explained, plaintiffs had been totally banned from flying internationally, which effectively meant that they could not travel in or out of the U.S. They were not merely inconvenienced. None could take a train or car to their desired destinations. Some had great difficulty returning to the U.S. by other means, including boat, because the No Fly list is shared with 22 foreign countries and U.S. Customs and Border Patrol. Having the same name as someone flagged as a terrorist (or the same name of a misspelling or mistranslation) can mean not being able to travel internationally. Period. The court also held that the federal government interfered with another constitutionally important interest — what the Court has called “stigma plus,” harm to reputation plus interference with travel. She might also have said property given the jobs and benefits lost amounted to the plus deprivation. That takes care of the first Mathews factor. Now for the second. The court assessed the risk of erroneous deprivation under the current DHS Redress process. On that point, the court noted that it’s hard to imagine how the plaintiffs had any chance to ensure that DHS got it right because they never got notice if they were on the list or why if they indeed were included. Plaintiffs had no chance to explain their side of the story or to correct misinformation held by the government–what misinformation or inaccuracy was unknown to them. In the recent “trust us” theme all too familiar these days, defendants argued that the risk of error is minute because the database is updated daily, officials regularly review and audit the list, and nomination to the list must be reviewed by TSC personnel. To that, the court recognized, the DOJ’s own Inspector General had criticized the No Fly list in 2007 and in 2012 as riddled with errors. Defendants also contended that plaintiffs could seek judicial review as proof that the risk of erroneous deprivation was small. The court pushed off making a determination on the risk of erroneous deprivation and valued of added procedures because it could not evaluate the defendants’ claim that plaintiffs could theoretically seek judicial review of determinations on which they have no notice. Defendants apparently conceded that there were no known appellate decisions providing meaningful judicial review. The court required the defendants to provide more briefing on the reality of that possibility, which I must say seems difficult if not impossible for plaintiffs to pursue. Because the court could not weigh the second factor, she could not balance the first two considerations against the government’s interest.

I will have more to say about the decision tomorrow. The process provided seems Kafka-esque. It’s hard to imagine what the defendants will file that the public can possibly learn. The briefing will surely be submitted for in camera review. Details of the process may be deemed classified. If so, defendants may invoke the state secrets doctrine to stop the court’s ever meaningfully addressing the rest of the summary judgment motion. It would not be the first time that the federal government invoked the state secrets doctrine to cover up embarrassing details of mismanagement. Since its beginnings, the state secrets doctrine has done just that. The parties were supposed to provide the court a status update today. More soon.

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1 Response

  1. Thomas Frederick Conlon Cpt USA Retd says:

    Very informative review, and show how sloppy this ‘Homeland’
    Security was creared out of FEMA. Coast Guard. Created to
    safeguard American Citizens it ignored the effectiveness of
    training up the already pretty astute boarding personnel,
    especially those at departure pointe for foreign ports.
    As a travel agency owner I was amazed that routine procedures
    about cash sales at ticket counters were relaxed to a degree
    beyond even what most retail travel agents even in small
    towns like Cumberland were required to follow. These measures
    could have foiled take overs or effectively alerted one or two of the flights that killed thousands on September 11th.

    Scrutinizing eveyone,or all phone calls, etc. can never be
    perfect due to volume and the time and massive payrolls
    involved merely waste funding better adapted to other means
    of prevention. Keep following the issue It is ineed of reform! Thomas F Conlon Life Member The Travel Institute