ACLU challenges constitutionality of no-fly list

Introduction

The American Civil Liberties Union today sued the U.S. government, alleging it violated the constitutional rights of 10 U.S. citizens or legal residents by placing them on the “No Fly” anti-terrorism list and failing to provide them due process to clear their names.

Among those filing the lawsuit were three former military veterans stranded overseas after being placed on the fabled list, including former Air Force officer Steven Washburn, whose plight was featured in a Center for Public Integrity story last month. Washburn was stuck for weeks in Ireland, unable to fly home to new Mexico after his name was added during an expansion of the no-fly list after the attempted bombing of an airliner in Detroit on Christmas Day. The list, maintained by the Department of Homeland Security, prevents people from flying because of alleged terrorism concerns.

Washburn said that FBI agents told him they knew of no wrongdoing he committed, but he remained unable to get the government to take him off the no-fly list. He was denied entry on one flight to the United States, and in another circumstance was pulled from a flight to a foreign country that was forced to turn around after it was learned he was on board.

Washburn, a Muslim convert who worked for a time in Saudi Arabia, said FBI agents instructed him the only way to get back to his New Mexico home was to fly to a foreign country and then drive across the U.S. border. He eventually returned home after a 72-hour journey in which he meticulously avoided flying over U.S. air space by traveling through Germany, Brazil, Peru and Mexico.

“America is supposed to assume you’re innocent before proven guilty, not force you to prove your innocence while assuming you’re too guilty to fly,” Washburn told the Center.

The ACLU alleged in the lawsuit filed in U.S. District Court in Oregon that the government has failed to provide citizens like Washburn a fair and equitable process for appealing their appearance on the no-fly list, violating their Fifth Amendment right to due process.

“The Constitution does not permit such a fundamental deprivation of rights to be carried out under a veil of secrecy and in the absence of even rudimentary process,” the lawsuit argues.

The suit said there is “a vast and growing list of individuals whom, on the basis of error or innuendo, the government deems too dangerous to fly, but too harmless to arrest.”

Defendants named in the lawsuit are Attorney General Eric Holder, FBI Director Robert Mueller and Timothy Healy, the director of the government’s Terrorist Screening Center that administers the list, as defendants

U.S. officials said they had not seen the lawsuit and could not immediately comment. Homeland Security Department and FBI officials told the Center in May that people who feel they’ve wrongly appeared on the no-fly list can appeal the decision through Homeland’s Traveler Redress Inquiry website.

Healy testified late last year that about 49 percent of the people who complain about being on the list involve mistakes or have names similar to terrorism suspects.

The ACLU said the other plaintiffs in the case include:

• Ayman Latif, a disabled Marine veteran living in Egypt who was barred from flying to the United States and could not attend a required Veterans Administration disability evaluation;
• Raymond Earl Knaeble, a U.S. Army veteran who is stuck in Santa Marta, Colombia after being denied boarding on a flight to the United States;
• Samir Mohamed Ahmed Mohamed, Abdullatif Muthanna, Nagib Ali Ghaleb and Saleh A. Omar, three U.S. citizens and a lawful permanent resident of the United States who were prevented from flying home after visiting family members in Yemen;
• Mohamed Sheikh Abdirahman Kariye, a U.S. citizen and resident of Portland, Oregon who was prevented from flying to visit his daughter who is in high school in Dubai;
• Adama Bah, a citizen of Guinea who was granted political asylum in the United States, where she has lived since she was two, who was barred from flying from New York to Chicago for work;
• Halime Sat, a German citizen and lawful permanent resident of the United States who lives in California with her U.S.-citizen husband who was barred from flying from Long Beach, California to Oakland to attend a conference.