For only the second time, a would-be traveler has been given offical notice by the US government that they are not on the US “No Fly” list.
Just weeks before a scheduled March hearing in a Federal lawsuit brought by US citizen Jamal Tarhuni challenging his repeatedly having been prevented from boarding commercial airline flights, including flights back to his home in Oregon from overseas, the director of the DHS “Traveler Redress Inquiry Program” (DHS-TRIP) has sent Mr. Tarhuni the letter above, telling him that, “We have been advised that you have been removed from the No Fly List.”
The only previous time the US government has told anyone they weren’t on the no-fly list was last year, in response to a direct order from a Federal court in the case of Dr. Rahinah Ibrahim. Unlike Mr. Tarhuni, Dr. Ibrahim is not a US citizen, although one of her children was born in the US and is a US citizen. Dr. Irahim’s US visa has been revoked, so she can’t return to the US regardless of whether she is on the US no-fly list. The Supreme Court heard arguments earlier this week on whether State Department decisions to deny visas to family members of US citizens are subject to judicial review.
The DHS-TRIP letter to Mr. Tarhuni makes no promises about future actions, and doesn’t guarantee that he will be allowed to travel by air. He still doesn’t know why he was on the no-fly list in the first place. He could be put back on the no-fly list at any time (including, as happened to him before, while he is abroad), without notice or explanation. And even if he isn’t put back on the no-fly list, he could be refused permission to board any flight (again potentially including flights home to the US from abroad) based on real-time pre-crime profiling and risk scoring.
Presumably, the government will now seek to have Mt. Tarhuni’s complaint dismissed as “moot”.
The government is also likely to use its latest letter to Mr. Tarhuni as evidence in other pending no-fly cases, including those of Yonas Fikre (who is represented in his ongoing lawsuit by the same attorney as Mr. Tarhuni) and Gulet Mohamed. So far as we know, Mr. Fikre is the only person who has been given official notice that he is on the US no-fly list, and not just constructive notice in the form of a denial of transportation by an airline. Mr. Fikre was denied asylum in Sweden, and, since he is still on the US no-fly list, was able to return to the US only because the Swedish government chartered a private jet to deport him.
The system of secret, extrajudicial no-fly orders is working, the government will claim, so the courts don’t need to exercise oversight over the process. The government will argue that if DHS-TRIP and the government’s recently-revised “No Fly 2.0” procedures provide sufficient administrative due process, the courts don’t need to review the allegedly derogatory evidence (if any) supporting DHS and FBI no-fly decisions.