Federal Judge Rules Secrecy of No-Fly List is Unconstitutional

Thursday, June 26, 2014
Judge Anna Brown (photo: The Oregonian)

The federal government’s secretive process for denying certain individuals information about why they’re not allowed to fly on commercial airliners is unconstitutional, a federal judge has ruled.


After hearing the case of 13 people placed on the no-fly list, U.S. District Judge Anna Brown declared the plaintiffs, all of whom are Muslims, have the right to know why they have been prevented from boarding aircraft. Under the current system, individuals placed on the list cannot learn the basis for their ban from flying, nor can they confirm their status with the government—something Brown said was a violation of the U.S. Constitution. The only way someone can find out if they can fly is to buy a ticket and see if they’re allowed to board the plane.


One of the plaintiffs, Ibraheim (Abe) Mashal, was born in New Jersey and served 13 years in the Marine Corps. Mashal didn’t find out about being on the no-fly list until he tried unsuccessfully to fly from Illinois to Washington state. He said that the FBI told him his name would be removed from the list if he agreed to work as an informant.


“The absence of any meaningful procedures to afford plaintiffs the opportunity to contest their placement on the no-fly list violates plaintiffs’ rights to procedural due process,” she wrote.


The possibility of error in putting someone on the list is also a concern, according to Brown. The process “contains a high risk of erroneous deprivation of plaintiffs’ constitutionally-protected interests,” she wrote.

The Department of Homeland Security (DHS), which maintains the list, must devise a new system for the plaintiffs to challenge their no-fly designations, according to Brown’s ruling.


Hina Shamsi, National Security Project director for the American Civil Liberties Union and a lawyer for one of the plaintiffs, said the decision has implications for others on the no-fly list.


“This decision identifies how the system is broken,” Shamsi told The Oregonian. “It’s now up to the administration or Congress to fix it.”

-Noel Brinkerhoff


To Learn More:

No-Fly List Decision on Secrecy Could Have Broad Implications (by Helen Jung, The Oregonian)

Clashing Rulings Weigh Security and Liberties (by Charlie Savage, New York Times)

Ayman Latif v. Eric Holder (U.S. District Court, Oregon) (pdf)

After 9 Years, Woman Gets off Secret No-Fly List, then Is Put on Secret Visa-Denial List (by Ken Broder, AllGov California)

Thirteen on No-Fly List Sue Federal Government Claiming Secret List is Unconstitutional (by Noel Brinkerhoff, AllGov)


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