In updates filed with Federal courts in at least two pending challenges to US government “no-fly” orders, lawyers for the government have revealed plans for changes to the internal procedures administrative agencies use in deciding who they “allow” to fly — and who they don’t.

While these changes look like cosmetic but inadequate improvements, they actually include an obscure but much more significant change designed to make it harder for people on the no-fly list to get the factual basis (if any) for the decision to put them on the list reviewed by a judge.

By shifting official responsibility for administrative no-fly decisions from the FBI to the TSA, the government hopes to bring those decisions fully within the scope of a special Federal jurisdictional law, 49 U.S.C. § 46110, which is designed to preclude any effective judicial review of TSA decisions — but which doesn’t apply to decisions (nominally) made by the FBI or other agencies outside the DHS.

This law allows TSA administrative orders to be reviewed only by Courts of Appeal (which have no ability to conduct trials or fact-finding), on the basis of the “administrative record” supplied to the Court of Appeals by the TSA itself.  The Court of Appeals is forbidden to second-guess the TSA’s fact-finding, even if it was made through a secret and one-sided internal process: “Findings of fact by the Secretary, Under Secretary, or Administrator, if supported by substantial evidence, are conclusive.”  As long as there is substantial evidence in the record constructed by the TSA to justify its actions, the Court of Appeals is forbidden to consider the weight of contrary evidence, even if it is also in the record.  And the TSA is free to decide that evidence submitted by anyone on the no-fly list is, for that very reason, not credible.

No-fly cases have been considered by District Courts, and one of them has gone to trial, only because the FBI (as the agency nominally responsible for the inter-agency Terrorist Screening Center) has been declared by both TSA and FBI to be the agency officially responsible for no-fly decisions.  When FBI decisions are challenged by people who claim their rights have been violated, those decisions are reviewed in the normal manner by District Courts that can conduct trials, hear testimony, receive evidence, and make their own findings of fact — without being required to rely exclusively on self-serving submissions by the FBI itself.

Initial reports reports on the revised no-fly procedures, first by Steven Aftergood of  the Federation of American Scientists and then by The Intercept and Firedoglake, have focused on the obvious changes: People who challenge whether they should be barred from flying may be given vague descriptions of the allegations or evidence (if any) against them or the no-fly criteria by which it was evaluated, or unclassified summaries of classified allegations or evidence or criteria, “to the extent feasible in light of the national security and law enforcement interests at stake” as assessed internally by the administrative agencies making no-fly decisions.

This “No-Fly 2.0” decision-making process is designed to look less obviously one-sided and opaque than the previous “decide everything in secret, and never confirm or deny anything” policy. But it has immediately (and rightly) been criticized for falling short of adequately addressing the scenarios of injustice that have been raised by Federal judges in these and other no-fly cases.

The more significant change in no-fly decision-making, however, is a less obviously significant change in agency responsibility for no-fly decisions from the FBI to the TSA.

According to a recent government filing in another no-fly case:

TSA orders are in fact what cause individuals on the No Fly List to be denied boarding. By statute, TSA is the sole agency responsible for ordering airlines not to board individuals whose names are on the No Fly List…. Simply put, without such a TSA directive to the air carriers, Plaintiffs could not have been denied boarding based on their alleged status on the No Fly List. Such a directive by TSA, moreover, easily satisfies the “liberal” definition of an “order” under Section 46110: it “imposes an obligation” on the airline not to board the passenger, “denies a right” that the passenger otherwise would have to board the aircraft by virtue of having purchased a ticket, and “fixes [a] legal relationship” between the passenger and the air carrier, by prohibiting the airline from boarding the passenger notwithstanding his or her purchase of a ticket.

But currently, the FBI is nominally responsible for the decision to include someone on the no-fly list, even though the actual no-fly order to the airline is issued by the TSA.

Under the new procedures:

Upon DHS TRIP’s receipt of an individual’s submission … the matter will be reviewed by the Administrator of the Transportation Security Administration (TSA) or his/her designee in coordination with other relevant agencies, who will review the submission, as well as the unclassified and classified information that is being relied upon to support the No Fly listing, and will issue a final determination.  TSA will provide the individual with a final written determination… and will notify the individual of the ability to seek further judicial review under 49 U.S.C. § 46110.

The elimination of even a nominal role for the FBI, and the assignment of sole responsibility for no-fly orders to the TSA, means that even if the FBI is named as co-defendant, people trying to challenge these orders will have to go directly to the Court of Appeals. Do not pass through a District Court, through any judicial fact-finding, or before a jury. And do not collect damages for wrongful orders by the TSA, since the authority of the Court of Appeals with respect to TSA orders is limited by 49 U.S.C. § 46110 to directing the TSA to modify its orders, or remanding the matter to the TSA itself for a “do-over”.

(49 U.S.C. § 46110 applies only to “final orders” by the head of the TSA or his or her designee. Documents we’ve obtained recently in response to Freedom of Information Act requests show that the ability to make real-time “fly/no-fly” decisions doesn’t rest solely with the head of the TSA, but has been delegated to the TSA “Federal Security Director” for each airport or his or her designee on duty. In other cases, the government induces airlines to deny transport to people who aren’t technically considered to be on the “no-fly” list but only on other so-called “watchlists”.  Presumably, however, any challenge to such a lower-level no-fly order would prompt a “final order” in the name of the head of the TSA upholding the front-line decision and thus exempting it from District Court jurisdiction.)

The TSA will, no doubt, try to portray the latest changes to no-fly procedures as “reforms” that will improve the transparency and fairness of the process. But the reality is that the TSA has included in its “reform” package a crucial change designed to close what the TSA sees as the “loophole” that has allowed these cases to be heard by Federal trial court judges despite the TSA’s efforts to get Congress to exempt the TSA’s decisions from judicial review.

The manner in which courts review TSA no-fly orders — if courts are allowed to do so at all — begs the question of  the TSA’s lack of any statutory authority to issue such orders in the first place. Congress should repeal 49 U.S.C. § 46110.  But even while this law remains on the books, Courts of Appeal reviewing such orders should strike them down as exceeding any authority Congress has granted to the TSA.

If the TSA comes to believe that someone poses such a threat to aviation as to justify restricting that person’s right to travel, the TSA should petition the appropriate court — presumably a federal District Court — for a judicial no-fly order in the form of an injunction or temporary restraining order.  That motion for a TRO or injunction can, and should, be considered by a trial court judge in the normal manner, under existing rules and procedures.