Federal judge rules grants partial victory to individuals on no-fly list

Peter Snyder

[JURIST] A judge for the US District Court for the District of Oregon [official website] ruled [opinion, PDF] Wednesday that those placed on the US government's no-fly list have "a constitutionally-protected liberty interest in traveling internationally by air, which is affected by being placed on the No Fly List." The plaintiffs in the case are 13 US citizens who were denied boarding on flights over US air space after January 2009. The plaintiffs have asserted that the current process available to the them through the Department of Homeland Security (DHS) [official website] does not provide a hearing at which an individual can present evidence to contest his or her inclusion on the no-fly list, and is therefore, unconstitutional. The government has contended that the DHS system in place is sufficient in light of the government's interest in national security. Judge Anna Brown has not concluded whether the government's use of the no-fly list violated the plaintiffs' constitutional rights to due process, stating in her opinion that, "the court is not yet able to resolve on the current record whether the judicial-review process is a sufficient, post-deprivation process under the United States Constitution." Brown has given both parties till September 9 to file a joint status report setting out their recommendation as to the most effective process to ensure that the court may come to a conclusion on the remaining issues.

The no-fly list was created by the Terrorist Screening Center (TSC), a branch of the FBI [official websites], in 2003. The TSC was established by Homeland Security Presidential Directive 6 [text] which, "directed that a center be established to consolidate the government's approach to terrorism screening and to provide for the appropriate and lawful use of terrorist information in screening processes." In 2012 the US Court of Appeals for the Ninth Circuit [official website] reinstated [JURIST report] a challenge brought by the American Civil Liberties Union (ACLU) [advocacy website] over the no-fly list maintained by the Transportation Safety Administration (TSA) [official website]. The Ninth Circuit ruled in 2008 that those placed on the government's no-fly list can challenge their inclusion on the list [JURIST report] in federal district courts. The court held that the TSC, which actually maintains the list, is a subsection of the FBI and is therefore subject to review by the district courts.