Oregon Federal Judge Finds No-Fly List to be Unconstitutional

 

On June 24, 2014, the United States District Court for the District of Oregon ruled that the No-Fly list was unconstitutional because the government does not provide Americans who are on the list any meaningful opportunity to contest their inclusion.

The case, Ayman Latif et al v. Eric Holder et al, involved 13 American Muslims, four of who were veterans, who were not permitted to board flights in the U.S. or fly over U.S. airspace. The plaintiffs alleged that they did not know why they are on the list, and only some were told that are, in fact, on the list. Each plaintiff submitted applications for redress through the Department of Homeland Security Traveler Redress Inquiry Program.

When the DHS receives a complaint through its Redress program, it investigates the complaint and issues a determination letter. The determination letter simply states that an investigation was completed. It does not confirm or deny if an individual is on the No-Fly list; it does not state why a person may or may not be on the list; and it does not provide any reassurances of whether a person can fly again. Sometimes a determination letter will inform the individual that they can seek judicial review in the U.S. court of appeals under 49 U.S.C. § 46110. Plaintiffs' alleged that this process violated their Fifth Amendment right to procedural due process because Defendants have not given Plaintiffs any post-deprivation notice nor any meaningful opportunity to contest their continued inclusion on the No-Fly List.

Judge Anna Brown agreed. (Opinion can be found here) She recognized that the government had a compelling interest in combating terrorism and held that while the government does not have to get rid of the list, it needs to come up with a better way for Americans on the list to challenge their inclusion. The government must also disclose to those on the list any unclassified information used to justify their inclusion. Judge Brown went on to say that the government could summarize that information or disclose it to an attorney with the proper security clearance. The Justice Department has not stated whether it would appeal the decision.

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