No-fly list's 'wholly ineffective' challenge procedure violates due process, federal judge rules

A federal judge in Oregon has ruled for 13 Muslim Americans who claimed their due-process rights were violated when the federal government put their names on a no-fly list and gave them no practical way to challenge the placement.

U.S. District Judge Anna Brown said the government procedures to remove names from the list were “wholly ineffective” and violated the Fifth Amendment right to due process, report the Wall Street Journal (sub. req.), the New York Times, the Los Angeles Times and Reuters. The ACLU represented the plaintiffs; its report on the ruling is here.

Brown said international travel “is not a mere convenience or luxury in this modern world. Indeed, for many international travel is a necessary aspect of liberties sacred to members of a free society.”

“Without proper notice and an opportunity to be heard, an individual could be doomed to indefinite placement on the No-Fly List,” Brown wrote in her decision. She said the government must explain why the plaintiffs are on the no-fly list and give them an opportunity to challenge their placement on the list.

The government could provide the plaintiffs with unclassified summaries of why they are on the list or disclose the classified reason to properly cleared counsel, Brown said. The government may need to limit or withhold information in some cases, she said, but that determination should be reviewable in the proper court.

Currently the government places people on the no-fly list using a “reasonable suspicion” standard. The government does does not routinely tell people when and why it includes them on the list. A challenge is heard by the Department of Homeland Security and then in court, which reviews the government rationale without disclosure to the person on the list.

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