Court rules “no-fly” review procedures lack due process

In a significant reaffirmation of the decision earlier this year in Ibrahim v. DHS, another federal District Court has now found that the US government’s administrative procedures for reviewing and appealing “no-fly” decisions violate both Constitutional standards of due process and the requirements of the Administrative Procedure Act.

The ruling this week by Judge Anna J. Brown of the US District Court for the District of Oregon, in Portland, comes in the case of Latif, et al. v. Holder, et al. This lawsuit was brought in 2010 by the ACLU on behalf of ten US citizens and permanent residents (green card holders). Their stories, as summarized in Judge Brown’s latest ruling, vary, but all of them have been prevented from boarding international flights to or from the US, and/or overflying US airspace.

Some of the plaintiffs in Latif v. Holder have been trapped in the US, separated from family and/or employment opportunities abroad, while others are trapped overseas, unable to return home. At least one of the plaintiffs who booked passage on a passenger-carrying ocean freighter to return to Europe from the USA was denied boarding by the ship’s captain as a result of a “recommendation” from the US Customs and Border Protection division of DHS.

In 2012, the 9th Circuit Court of Appeals overturned the government’s effort to prevent the District Court from hearing this case. Last year, finally beginning to consider the merits of the complaint, Judge Brown ruled that international travel by air is a right that can only be restricted in accordance with due process of law.

Judge Brown’s latest ruling addresses whether the government’s current procedures, particularly the DHS “Traveler Redress Inquiry Program” (TRIP), provide such due process. Judge Brown has now decided that they do not, and must be changed to provide the subjects of no-fly orders with:

  1. Notice (at least after they have been denied boarding on an international flight and sought redress) of whether they are on the US government’s no-fly list.
  2. At least a summary of the nature of the “suspicion” and the evidentiary basis for the administrative decision to place them on the no-fly list.
  3. An opportunity for some sort of in-person hearing to present evidence to rebut the allegations and evidence against them.

Echoing Judge Alsup’s finding in Ibrahim v. DHS, Judge Brown found that the opportunity to submit exculpatory or rebuttal evidence through the TRIP program is meaningless without notice of what allegations have been made, on what evidentiary basis, and thus of what needs to be rebutted.

The decisions in Latif v. Holder continue a trend to narrow the implications of the 9th Circuit’s erroneous decision in Gilmore v. Gonzales.  In Latif v. Holder, the 9th Circuit found that (unlike in Gilmore v. Gonzales) the case could be heard by the District Court. And Judge Brown found that (unlike in Gilmore v. Gonzales) the hypothetical existence of alternatives to air travel did not eliminate the plaintiff’s interest in exercising their right to travel by air.

The complaint inLatif v. Holder was based exclusively on the lack of due process of law in the government’s procedures for making and reviewing “no-fly” decisions. The plaintiffs’ lawyers in this case did not raise, and Judge Brown’s ruling did not address:

  1. The Constitutionality of making “no-fly” decisions by administrative, rather than judicial, order. (Restrictions on travel and movement based on alleged threats to life and safety in other contexts, such as cases of domestic violence, typically take the form of court injunctions or restraining orders.)
  2. The criteria used in making no-fly decisions. (Judge Brown seemed concerned that the government issues no-fly orders restricting the travel of people against whom there is some basis for “suspicion”, even when the preponderance of the available evidence suggests that they pose no threat. But while Judge Brown ruled that this low standard of suspicion creates a high likelihood of erroneous no-fly orders, she didn’t address whether no-fly orders can lawfully be based on such slight suspicion.)]
  3. The basis, if any, for suspicion of any of the individual plaintiffs, or whether any of the plaintiffs should be prevented from travelling by air. (Despite Judge Brown’s latest ruling, none of the plaintiffs have obtained any relief yet, or know whether they will ever be able to travel by air.)

Having found that the plaintiffs had a right to travel by air, and that the “no-fly” orders preventing them form doing so had been illegally issued, Judge Brown should have enjoined the government from enforcing those unconstitutional administrative orders or otherwise interfering with the plaintiffs’ rights.

Instead, Judge Brown has allowed the secret (and unconstitutional) administrative no-fly orders to remain in effect, while offering the government a chance at a “do-over” to propose a revised procedure for notice and administrative appeals of those orders.

“Reform” of the process of administrative controls on freedom of movement is not the solution to the injustice of the no-fly list.  There is no reason to invent new procedures or establish new kangaroo “travel courts”. Travel, including air travel by common carrier, is a right. If the government wants to restrict someone’s travel, it should apply to a judge for a no-fly in junction or restraining order, in accordance with the existing, well-established judicial procedures for such orders.

2 Responses to “Court rules “no-fly” review procedures lack due process”

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