If you exercise your right to travel, will the US government use your past travel as the basis for denying you the right to travel in the future?

Reading between the lines of the redacted public versions of recent filings in one of the ongoing legal challenges to US government no-fly orders, the answer appears to be, “Yes”.

Merely having visited the “wrong” place at the “wrong” time (as subsequently and secretly determined by the precogs who devise the government’s algorithms for predicting future terrorist behavior) can be sufficient to get you put on the no-fly list.

Did you visit Yemen in 2009? Now you might be on the no-fly list — for that reason, and maybe that alone.

Case in point: US citizen, US Army veteran, and former civilian military contractor Raymond Knaeble.  In 2010, Mr. Knaeble was stranded abroad (at the time, he was visiting his wife’s family in Colombia) when he was denied boarding on a flight back to the US.  He later became one of the plaintiffs in Latif v. Holder, a lawsuit brought by the ACLU and other cooperating counsel in Portland, Oregon.

After judges hearing that case and the case of Gulet Mohammed in Virginia both ruled that the procedures for issuing secret administrative no-fly orders were unconstitutional because they failed to afford US citizens due process of law, the government tried to give itself a “do over” in the form of new “No-Fly 2.0” procedures.  The government asked the judges hearing both of these cases to postpone their decisions, or to reconsider them after the plaintiffs had jumped through a new round of kangaroo-court administrative “review” of whether they should be prevented from flying. (Participating in that process can be risky: One US citizen, Bilaal Abood, was recently indicted and detained without bail for making allegedly false statements in answer to questioning by the FBI — statements that he made during an “interview” (interrogation) that he participated in after being denied boarding when he tried to leave the US by air, in the hope that answering the FBI’s questions would help him get off the no-fly list.)

The “No-Fly 2.0” system was primarily designed to evade meaningful judicial review by shifting formal legal responsibility for no-fly decisions from the FBI to the TSA. That would mean that these decisions would not be reviewable under normal trial court procedures but only by circuit courts under a special law, 49 U.S.C. § 46110, which requires appellate judges to defer to the TSA’s judgment with respect to all factual allegations and to base their review only on the administrative record created and handed up by the TSA itself. (This law has itself become the focus of Constitutional challenge this month, for the first time, as discussed below.)

But in response to the judges’ findings that it was unconstitutional not to tell people whether they were on the no-fly list or why, the TSA did finally confirm to some of the plaintiffs that the government had forbidden them to fly. No secret, obviously, since they had already been kept off planes despite holding valid tickets.  And the TSA provided each of those plaintiffs with a minimal summary of some (but not necessarily all) of the factors on which the government had based that decision.

The government also filed declarations with the court from several bureaucrats describing in general terms, without reference to any of the specific plaintiffs, some (but again, not all) of the factors that might be considered in making no-fly decisions. In those declarations and in other pleadings, the government admitted that no-fly decisions are being based on predictive (pre-crime) profiling rather than necessarily on any actual evidence about the individual actions or intentions of the people whose travel is being restricted:

[T]he No Fly List is not a statute, and No Fly List assessments neither forbid nor require particular conduct. Rather than regulating conduct per se, the No Fly List requires predictive assessments about conduct that may or may not occur in the future.

In response, the plaintiffs’ lawyers filed a devastating declaration (worth reading in full) from an expert in the predictability of terrorist actions and intentions, describing the complete lack of a scientific or factual basis for profile-based predictions.

The government argues that despite the vague and admittedly incomplete descriptions it has provided for its adverse actions,  “The No Fly List criteria are not unconstitutionally vague”.  According to the government’s brief:

[A]n ordinary person is likely to understand what conduct triggers placement on the No Fly List. “The test for vagueness is whether the provision fails to give a person of ordinary intelligence fair notice that it would apply to the conduct contemplated.”… The conduct contemplated by the No Fly List is a violent act of terrorism.

But this misses the point: the “conduct” that triggers placement on the no-fly list is not terrorism but whatever the government considers to be “suspicious” of possible future terrorism. The question is not whether “terrorism” is vague, but whether “suspicious” is vague — especially when the government continues to refuse to disclose its definition, criteria, or algorithm for determining what is suspicious. People of ordinary intelligence may (or may not) think we know what the government would consider terrorism. But we have no way to know what the government will consider “suspicious”.

Copies of the letters from the TSA giving reasons for no-fly decisions are included in the latest pleadings filed with the court in Latif v. Holder.  The unredacted letters were filed under seal, to protect the privacy of personal information about the plaintiffs. But it’s fairly clear from the redacted versions filed publicly, and from the arguments about them in the plaintiffs’ briefs, what some of the plaintiffs were told about the reasons that they had been put on the no-fly list.

Mr. Knaeble’s real offense appears to have been that he converted to Islam. According to the complaint in his lawsuit, “In late 2008, Mr. Knaeble converted to Islam. From August 2009 to December 2009, he studied at the Saba Institute, a language school in Sana’a, Yemen that specializes in teaching Arabic to foreigners.”

There was nothing particularly unusual about traveling to Yemen at that time for that purpose. We visited Sana’a in 2008, and people we met were friendly and welcoming (even to non-Muslims).  Because Yemen was and is the least wealthy and therefore least expensive country where Arabic is the principal language, it had long been one of the destinations of choice for foreigners looking to study Arabic on a budget, especially those whose language study was not being funded by a government or other employer.

The letter sent to Mr. Knaeble contains only a three-line description of why the government decided to keep him on the no-fly list, and those three lines were redacted from the publicly filed version of the letter.  But according to the motion to which the letter was attached as an exhibit, “Ultimately, Defendants are doing little more than guessing at the possibility that Mr. Knaeble might engage in terrorist violence at some point in the future based on nothing more than alleged travel to a particular country in a particular year.”

It seems highly likely that the particular country was Yemen, the particular year was 2009, and the only reason the government has given for keeping Mr. Knaeble on the no-fly list is that he traveled to Yemen in 2009.

Is this the meaning of the new “Axis of Evil” of Yemen (and perhaps also Syria)? Or the new meaning of guilt by association with a place instead of a person?

Meanwhile, on the other side of the country in the Eastern District of Virginia, Gulet Mohamed has been forced into a Catch 22 situation by the government’s creation of a revised No-Fly 2.0 “Traveler Redress Inquiry Program” (TRIP 2).

If Mr. Mohamed requests “review” of the no-fly order against him through the TRIP 2 system, the responsibility for keeping him on the no-fly list will be transferred from the FBI’s Terrorist Screening Center to the TSA.  Whatever the TSA determines will be be reviewable only by a Court of Appeals. So his case will be transferred to the Circuit Court, where the TSA’s decision will be reviewed solely on  the basis of the TSA’s own administrative record under the “deferential” standard of 49 U.S.C. § 46110: “Findings of fact by the Secretary, Under Secretary, or Administrator, if supported by substantial evidence, are conclusive.” (The statute refers to the Department of Transportation and the FAA, but the powers to which it refers have been transferred to the TSA and DHS.)

On the other hand, if Mr. Mohamed declines to participate in the TRIP 2 kangaroo court, the government could argue that it would have provided him with due process.

The status of Mr. Mohamed’s case — perhaps the most advanced of all of the legal challenges to no-fly orders — is complicated.  The District Court judge hearing the case has already rejected the government’s claim that the case can’t be decided without revealing “state secrets”. After reviewing the allegedly derogatory secret information about Mr. Mohamed in camera, Judge Trenga ruled that he didn’t need to consider any of the alleged secrets to find that the no-fly procedures were unconstitutional.

Now that Judge Trenga has reiterated his finding that Mr. Mohamed’s Constitutional right to due process of law was violated, Mr. Mohamed wants to proceed to a trial on the amount of damages, and has moved for discovery to identify the individuals responsible for unconstitutionally denying his rights. (There are people in the US today whose job is to sit all day in secret rooms putting their fellow citizens on blacklists, or supervising the robo-precogs who do so. But none of them have ever been publicly identified, nor has their work like ever been described, even by leakers.)

Mr. Mohamed’s latest motion also challenges the Constitutionality of the deferential Circuit Court “review” standard established by 49 U.S.C. § 46110, as applied to decisions affecting fundamental rights like the rights to freedom of movement, travel, and assembly:

[B]ecause Mohamed’s substantive due process claim regards fundamental rights, 46110’s standards would be unconstitutional if applied to that claim. This is because the government can only interfere with a fundamental right if the interference is narrowly tailored to a compelling interest. Indeed, administrative remedies for fundamental rights are—as a matter of law—insufficient “no matter what process is provided.” Reno v. Flores, 507 U.S. 292, 302 (S.Ct. 1993). 46110, however, requires a reviewing court to apply a standard that would transform fundamental rights into something less than a liberty interest. Under 46110, a reviewing court must treat TSA “[f]indings of fact” as “conclusive” so long as those findings are supported “by substantial evidence.” 49 USC § 46110(c). This standard is inconsistent with the strict scrutiny that distinguishes fundamental rights from lesser liberties.

We’ve always  believed that Section 46110 is unconstitutional. So far as we know, however, this latest motion in Mohamed v. Holder is the first time this argument has been explicitly made in litigation.  Briefing on this issue is continuing, to be followed sometime this fall by oral argument before Judge Trenga in Alexandria.