Challenging the No-Fly List: The Status of the Litigation after Five Years

Criteria for Inclusion: “Too Dangerous to Fly, but too Harmless to Arrest” 
The no-fly list is created and maintained by the Terrorist Screening Center (TSC) of the Federal Bureau of Investigation (FBI). The TSC shares the list with the Transportation Security Administration (TSA) so that the TSA can pre-screen airline passengers. The TSC obtains “nominations” for inclusion in the Terrorist Screening Database from various federal departments and agencies, including the National Counterterrorism Center and the FBI, and it adds a nominated individual to the database if it concludes that there is a “reasonable suspicion” based on “articulable fact” and “rational inferences” that the individual “is known or suspected to be, or has been engaged in conduct constituting, in preparation for, in aid of or related to, terrorism or terrorist activities.” Latif, 28 F. Supp. 3d at 1141. In addition, the TSC includes an unknown number of additional individuals in the database under a “secret exception to the reasonable suspicion standard,” though the nature and extent of that exception is unknown, and the government has asserted the state secrets defense to avoid disclosure. Ibrahim v. Dep’t of Homeland Sec., 62 F. Supp. 3d 909, 923 (N.D. Cal. 2014).

The TSC evaluates the individuals in the database for inclusion on either the no-fly list (individuals forbidden from flying within U.S. airspace) or the “selectee” list (individuals selected for heightened screening). The criteria for inclusion on these lists are not public. The government has previously asserted that the criteria for these lists are “considerably more stringent” than the “reasonable suspicion” standard used for placement in the database. U.S. Dep’t of Homeland Sec., Role of the No Fly and Selectee Lists in Securing Commercial Aviation 9 (July 2009). However, in the defendants’ motion for summary judgment, the government reasserted the “reasonable suspicion” standard even for the no-fly list itself: “As the Government has previously explained and this Court has previously acknowledged, the standard for inclusion on the No Fly List is ‘reasonable suspicion.’ The Government must have a reasonable suspicion that one of the criteria for inclusion is met.” According to the declaration of Michael Steinbach, Assistant Director of the FBI’s Counterterrorism Division, “nominations must not be based solely on race, ethnicity, national origin, religious affiliation, or activities protected by the First Amendment. . . .” Declaration of Michael Steinbach, Latif v. Holder (filed May 28, 2015) (emphasis added). Individuals do not receive notice when they are placed on either list.

The ACLU carefully selected the 13 plaintiffs to present the strongest possible challenge to the government’s listing policy. All 13 are U.S. citizens, and although the original complaint also included 3 noncitizen lawful permanent residents, the later amended complaint narrowed the potential issues in the case by putting forward only the claims brought by citizen plaintiffs. The plaintiffs were not officially informed of their status on the list prior to filing the lawsuit, although all had been denied boarding in the past and had been told that the denial was due to their placement on the list.

Four of the 13 plaintiffs were veterans of the U.S. armed forces, including one who received regular benefits as a disabled veteran. All plaintiffs disavowed any terrorist intent and asserted that they posed no threat to commercial aviation and knew of no reason why they would be placed on the no-fly list. All of the plaintiffs asserted that the travel ban had created significant disruption in their daily lives, causing a loss of employment opportunity, inability to travel for religious obligations, and separation from spouses and loved ones.

None of the plaintiffs were formally accused of committing any crime. One of the plaintiffs—former Air Force officer Steven Washburn—was allegedly interviewed by FBI agents who told him that they had “no concern” about him and suggested that he “get around the list by flying to Mexico” and driving into the United States. John Solomon & Brian Ross, “U.S. Apologizes to Billionaire Added to No-fly List,” Center for Public Integrity and ABC News, May 21, 2010. Because none of the plaintiffs were wanted by law enforcement, the plaintiffs characterized the government’s position as deeming them “too dangerous to fly, but too harmless to arrest.”

The Legal Challenge to the No-Fly List 
The plaintiffs’ complaint raised separate claims challenging substantive and procedural due process. Their substantive claim asserted that because they “do not present a security threat to commercial aviation,” their placement on the no-fly list lacked a rational basis and “unreasonably deprived Plaintiffs of constitutionally protected rights, including their liberty interests in travel, freedom from false stigmatization, and nonattainder.” Complaint ¶¶ 135, 145, Latif v. Holder (D. Or. filed Jan. 11, 2013). Procedurally, the plaintiffs alleged that the government’s failure “to provide Plaintiffs with any reason or basis for their placement on the No Fly List and in refusing to provide Plaintiffs with a meaningful opportunity to challenge their continued inclusion on the No Fly List” violated both constitutional guarantees of procedural due process and the Administrative Procedure Act. Id. ¶ 139.

The district court granted partial summary judgment in favor of the plaintiffs on the procedural due process issue. The court applied the traditional balancing test from Mathews v. Eldridge, 424 U.S. 319, 335 (1976), weighing the plaintiffs’ “constitutionally-protected liberty interests in travel and reputation,” and the risk of “erroneous deprivation” if individuals are placed on the no-fly list “despite not having a connection to terrorism or terrorist activities,” against the government’s interest “in combating terrorism and protecting classified information.” Latif, 28 F. Supp. 3d at 1147–55. After weighing these factors, the court concluded that the plaintiffs’ liberty interests and the risk of erroneous deprivation outweighed the government’s interest in secrecy, noting that although the government’s interest in national security “weighs heavily,” that interest should be given less weight when “additional probative procedural protections were possible without jeopardizing the government’s interest in national security.”

The court ordered the defendants to establish a new process that would (1) provide the plaintiffs with notice as to whether or not they remained on the no-fly list, (2) provide each plaintiff remaining on the list with the reasons for placement on that list, (3) allow plaintiffs to submit evidence contesting the basis for inclusion on the list, and (4) ensure consideration of the plaintiffs’ “responsive evidence” in the defendants’ administrative and judicial review. The court offered the defendants a choice between providing plaintiffs with unclassified summaries of their reasons for inclusion on the list or providing “properly-cleared” counsel with the classified reasons.

The Government’s Revised Procedures 
In January 2015, the defendants filed a status report with the court that explained the new procedures adopted by the government. Notably, the defendants had provided each of the plaintiffs with letters that informed the plaintiffs of their status on the no-fly list, specified the basis for their inclusion, and “provided unclassified summaries of the reasons why each individual met the applicable criteria, to the extent possible without compromising sensitive national security and law enforcement information.” Defendants’ Status Report at 2, Latif v. Holder (filed Jan. 22, 2015). The defendants had also considered the evidence and information submitted by the plaintiffs and had determined that 7 of the 13 plaintiffs should not be on the no-fly list. Six of the plaintiffs remained on the list, including two veterans of the U.S. armed forces.

The parties filed a joint status report explaining their remaining areas of disagreement regarding the revised process. Although the new procedures narrowed some of the issues in contention—most notably, by giving the plaintiffs notice of their status on the list—several significant areas of contention remained. Overall, the plaintiffs objected to the government’s failure to explain the full basis for the plaintiffs’ inclusion on the list, the government’s failure to allow for a hearing to challenge the list, and the government’s alleged use of improperly obtained evidence and constitutionally protected speech to support placement on the no-fly list.

Remaining Areas of Contention and Issues for Court Adjudication 
Once the new procedures were announced, the parties filed renewed motions for summary judgment on the procedural claims of the six plaintiffs remaining on the no-fly list. Some of the most significant disputes over the revised procedure included the following issues:

• Although the defendants had provided each of the plaintiffs with a partial statement of the reasons for their inclusion on the list, the plaintiffs objected that they did not provide any of the plaintiffs a full statement of the reasons for their inclusion on the list, and none “included an explanation of how the allegations supposedly satisfied the criteria for inclusion,” failing to show “the Government’s application of fact to the legal standard,” and thus hindering the plaintiffs’ ability “to meaningfully defend themselves.” Joint Status Report at 5, Latif v. Holder (filed Feb. 6, 2015).
• The plaintiffs objected to the defendants’ failure to provide “exculpatory information that may be in the government’s possession.” The defendants argued that exculpatory evidence need not be provided in what was a civil, rather than a criminal, proceeding, stating that “inclusion on the No Fly List does not require the process due in criminal proceedings.” Defendant’s Cross-Motion for Summary Judgment: Plaintiff Washburn at 15 (filed May 28, 2015).
• The plaintiffs additionally objected to the government’s failure to provide a hearing at which plaintiffs could provide live testimony and “cross-examine witnesses who provided information or made allegations against them.” Joint Status Report at 4. The defendants responded that “such procedures are not required by the case law, would add little value to the process or reduce the risk of error, and reasonably can be expected to risk significant harm to national security.” Defendants’ Cross-Motion for Summary Judgment at 50 (filed May 28, 2015).
• The defendants argued that they needed to withhold relevant evidence to avoid causing “harm [to] national security, law enforcement activities and third party privacy concerns,” and to protect the government’s “sources and methods.” Defendant’s Cross-Motion for Summary Judgment: Plaintiff Washburn at 15. Steinbach’s declaration elaborated that even the disclosure of the existence of an investigative file could “alert the individual to the Government’s investigative or intelligence interest in him and cause him to take counter-measures to avoid detection,” and could induce associated subjects “to flee, destroy evidence, or take steps to alter their conduct or communication so as to avoid detection of future activities.” Declaration of Michael Steinbach ¶¶ 24, 25 (filed May 28, 2015). The plaintiffs, however, raised the possibility that the defendants’ information may have come from illegal surveillance techniques, and they argued that continued secrecy prevented the plaintiffs from “seek[ing] judicial review of the lawfulness of that surveillance.” Joint Status Report at 3.
• One plaintiff, U.S. Air Force veteran Steven Washburn, alleged that the notification letter he received “states that Mr. Washburn was placed on the No Fly List in part because of alleged conduct that, if accurately described in the letter, is plainly protected under the First Amendment,” and alleges that such treatment violates his right to engage in protected speech or conduct. Memorandum of Points and Authorities in Support of Plaintiff Steven Washburn’s Renewed Motion for Partial Summary Judgment at 10 (filed Apr. 17, 2015). The substance of the alleged conduct was redacted from the public briefs. Steinbach’s declaration asserted that placement on the no-fly list could not be “solely based” on First Amendment activities such as speech or religious practice; it left open the possibility that such activities could form part of the basis for inclusion on the list. Declaration of Michael Steinbach ¶ 9.
• Another plaintiff remaining on the no-fly list, New Jersey native Amir Meshal, alleged that evidence used by the government to defend his placement on the no-fly list consisted of “alleged statements Defendants attributed to him [that] were the result of FBI agents’ coercive interrogation—including threats of torture, disappearance, and death—of Mr. Meshal while they unlawfully detained him in East Africa.” Memorandum of Points and Authorities in Support of Plaintiff Amir Meshal’s Renewed Motion for Partial Summary Judgment at 5 (filed Apr. 17, 2015). Although facts of Meshal’s detention were not included in the Latif record, Meshal had earlier filed a civil claim seeking damages for his alleged unlawful detention. A federal district court in D.C. had dismissed the case, stating that it was “constrained” by circuit court precedent that “rejected a Bivens remedy for citizens who allege they have been mistreated, and even tortured, by the United States of America in the name of intelligence gathering, national security, or military affairs.” Meshal v. Higgenbotham, 47 F. Supp. 3d 115 (D.D.C. 2014). Nonetheless, the court’s opinion stated that “[t]his Court is outraged by Mr. Meshal’s ‘appalling (and, candidly, embarrassing) allegations’ of mistreatment by the United States of America,” but acknowledged that “[o]nly Congress or the President can provide a remedy to U.S. citizens under such circumstances.” The responsive portions of the government’s cross-motion are largely redacted but conclude that after considering the evidence, government officials “nonetheless determined that inclusion on the No Fly List was appropriate.” Defendants’ Cross-Motion for Partial Summary Judgment: Plaintiff Meshal at 9 (filed May 28, 2015). Although Meshal remains on the no-fly list, news reports have stated that Meshal “was able to pass an FBI background check when he got his certification to drive a school bus.” Tom Lyden, “Investigators: ‘Connecting the Dots’,” Fox 9.com, May 19, 2015.

The Challenge Ahead: Evaluating the Balance Between Due Process and Secrecy 
Although the government’s new procedures for the no-fly list offer some new procedural protections—including, notably, a right to find out one’s status on the list—substantial challenges remain ahead for the district court. Placement on the no-fly list represents a serious impairment of plaintiffs’ liberty, preventing them from engaging in employment activities that require travel, visiting loved ones, and making religious pilgrimages. At the same time, national security is also a compelling state interest. In seeking to balance these interests in a procedural due process analysis, the court will have to make difficult determinations about whether additional procedural protections could be granted without sacrificing the government’s security interest. Such a determination is difficult, however, when much of the information needed to conduct that analysis is protected by various levels of secrecy—secret not just from the public or the plaintiffs but, in significant part, also secret from the court itself.

In addition to the procedural issues, the plaintiffs’ substantive due process challenge still remains to be argued. Regardless of what procedural protections are enacted, the court will have to address whether “reasonable suspicion,” combined with an additional secret review process, offers a sufficient ground to restrict individuals’ freedom of travel. Reno v. Flores, 507 U.S. 292, 302 (1993) (explaining that substantive due process “forbids the government to infringe certain ‘fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest”). Although the Supreme Court has not yet held that international travel is a fundamental right, scholar Jeffrey Kahn has recently argued that a “right to leave his or her country and return home again” is inherent in the Citizenship Clause of the Fourteenth Amendment. Jeffrey Kahn, “International Travel and the Constitution,” 56 UCLA L. Rev. 271, 348 (2008).

Finally, although the doctrines of procedural and substantive due process have typically been analyzed separately, the secrecy of the underlying processes in this case causes the substantive issues to be closely intertwined with the procedural ones. Thus, for example, even long-established fundamental rights such as religious practice and political speech may form part of the basis for restricting travel—indeed, the government’s only reassurance has been that such protected rights will not form the “sole” basis for inclusion on the no-fly list—but the government’s asserted need for procedural secrecy creates a challenge for the court’s ability to measure either the extent of that substantive deprivation or how narrowly tailored the government’s processes are. Going forward, the court will likely need to consider both the substantive and the procedural issues together to resolve the due process claims in the case.

Keywords: civil rights litigation, national security, no-fly list, TSA, procedural due process, substantive due process

_{Cassandra Burke Robertson is a professor of law at Case Western Reserve University School of Law, and Irina D. Manta is an associate professor of law at Hofstra University Maurice A. Deane School of Law.}

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