Last week, a federal judge ruled the government’s no-fly list unconstitutional because it fails to allow a way for people on it to challenge their inclusion. The American Civil Liberties Union filed the lawsuit in June 2010 on behalf of 13 U.S. citizens, most of whom are Muslim-Americans, including four ex-military members, who discovered they were on the list with no notification or explanation and no effective means to remove themselves from it.
U.S. District Court Judge, Anna Brown mandated that the government create new procedures that correct these problems. She called the current process “wholly ineffective” and a violation of the Fifth Amendment’s due process guarantee. The ruling also ordered the government to inform the 13 plaintiffs why they are on the list, and allow them the opportunity to challenge their inclusion before the judge. Brown said that international travel was not merely a convenience nor was it a luxury, but a necessary aspect of liberties sacred to members living in a free society.
Abe Mashal, a former marine who now owns a dog-training business, discovered he was on the no-fly list in April 2010. After unsuccessfully attempting to print his boarding pass, he was surrounded by TSA agents and Chicago police.
“I found the hard way I was on the no-fly list,” he said in an interview with KCRW. “I was told I was on the no-fly list and the FBI was on their way to the building to speak with me.”
When the FBI arrived, agents took Mashal into a room and questioned him about his religion among other things, then said he was free to go. When he asked how he got on the no-fly list, how he could get off it, an agent told him that he didn’t know and even if he did, he could not tell him. The agent instructed him to go to the Department of Homeland Security website to fill out a redress form, which he did with no success.
It appears the government uses the no-fly list to recruit American citizens to spy on Muslim individuals and organizations. In June 2010, FBI agents informed him that he could get off the no-fly list if he became an informant to infiltrate mosques and report the activities of certain people. Following his meeting with the FBI, he contacted the ACLU and became a plaintiff in the lawsuit. He wrote a book entitled, No Spy, No Fly, which details his ordeal.
Several of the plaintiffs became stranded when they were prevented from flying home to the United States after traveling overseas. Three of the plaintiffs had visited family members in Yemen and Dubai, and they became stranded. Three other plaintiffs were students who had studied abroad in Saudi Arabia and Pakistan.
The government established the no-fly list in 2003 as an anti-terror measure following the September 11, 2001 attacks. The list restricts those on it from boarding planes to, from and within the United States. There are currently about 20,000 people on the list, approximately 500 of them are U.S. citizens. The list has come under scrutiny and criticism because of its size and the way names are selected to populate it.
Although the ruling declared the no-fly list unconstitutional on the grounds that people on the list could not find out why they were on it and could not easily contest their inclusion, the government still retains the ability to add U.S. citizens, discretely and indiscriminately, to it without their knowledge. The list remains a secret document used to control who can and cannot access air travel in the United States.
By Brandi M. Fleeks