A 3-judge panel of the 9th Circuit Court of Appeals has upheld the government’s procedures and criteria for issuing “no-fly” orders against a complaint that the criteria (which are essentially “pre-crime” criteria based on predictions of future bad actions) are too vague to provide fair notice of what actions might lead to a “no-fly” order, and that the procedures do not provide the degree of procedural due process (notice of the accusations, an opportunity to see the evidence and cross-examine witnesses, etc.) required by the Constitution.

While the 9th Circuit panel left open the possibility of a challenge to the substantive grounds for a specific no-fly order, it upheld the government’s effort, in mid-litigation, to change the procedures for no-fly orders to keep challenges to no-fly orders out of U.S. District Courts and preclude any trial or adversarial or judicial fact-finding in such cases.

The 9th Circuit panel found that no-fly orders issued by the TSA under the current revised procedures are excluded from the jurisdiction of U.S. District Courts. TSA no-fly orders can be “reviewed” by a Circuit Court of Appeals only on the basis of a self-serving “administrative record” created by the TSA, and on the basis of a deferential standard that presumes the validity of the TSA’s fact-finding. The 9th Circuit panel did not address the Constitutionality of the applicable jurisdiction-stripping law, 49 U.S.C. § 46110, which is currently being challenged in the 1st Circuit in Sai v. Pekoske (originally Sai v. Neffenger).

The decision announced yesterday in Kashem v. Barr may be the worst appellate court decision against freedom of travel since the 2006 decision by the 9th Circuit Court in Gilmore v. Gonzales.

This was the third time that 9th Circuit has ruled on appeals in Kashem v. Barr.

The original complaint was filed in 2010 in U.S. District Court in Oregon by a group of U.S. citizens, some in the U.S. but not allowed to travel by air and some trapped outside the U.S. by no-fly orders and unable to return home. Since then, at least one of the original plaintiffs has died, and the government has tried to moot the cases against several of the other plaintiffs by taking them off the no-fly list — although with no assurance that they won’t be placed back on it without warning, perhaps while they are again overseas.

At the time the case was filed in 2010, there were no publicly-disclosed criteria for fly/no-fly decisions, which are made in real time each time anyone seeks to board a flight to, from, within, or via the United States or any of its territories and dependencies.

Even when U.S. citizens sought “redress” for denial of air transportation through the TSA’s kangaroo-court TRIP program, the government would neither confirm nor deny that airlines had been ordered not to transport them, even when this was obvious from airlines’ actions in refusing to sell tickets or allow them to board flights.  Nor would any agency of the U.S. government disclose anything about the allegations, if any, forming the basis for a no-fly order, or any of the evidence, if any, purported to support those allegations.

In 2015, after courts in this and another no-fly case both ruled that these no-fly policies and procedures denied the subjects of no-fly orders their Constitutional right to due process, the government adopted a new TRIP 2.0 system for no-fly decisions.

Under the procedures in effect since 2015, no-fly orders are still issued in secret. But if an individual challenges a no-fly order that they suspect has been issued against them, the Terrorist Screening Center, which is nominally controlled by the FBI and makes initial no-fly decisions, will refer the matter to the director of the TSA for a “final” fly/no-fly decision.

If the TSA then decides to impose or keep in place a no-fly order, it will so inform the subject of the order and provide them with a summary of some (not necessarily all) of the reasons for the order, and a summary of such of the evidence (if any) supporting the order as it determines can be disclosed without harming national security.

The decision to provide some after-the-fact notice of contested no-fly orders, and some information about the reasons for them, was presented as a concession to critics. But as we pointed out at the time, the more significant change was the replacement of the FBI by the TSA as the agency nominally responsible for inter-agency no-fly decisions. That was intended to preclude District Court review of no-fly orders, which had been going badly for the government, by placing them within the scope of to 49 U.S.C. § 46110. That tactic for the government succeeded in yesterday’s 9th Circuit ruling, exactly as we had predicted.

In addition to finding that the District Court lacked jurisdiction to hear challenges to no-fly orders issued pursuant to the post-2015 TRIP 2.0 procedures, yesterday’s decision by the 9th Circuit panel addressed issues of vagueness and procedural due process.

With respect to vagueness, the panel found that the plaintiffs had adequate notice of what conduct could lead to no-fly orders against them, even though none of the criteria for the issuance of no-fly orders were disclosed until more than five years after the lawsuit was filed and after the alleged actions forming the basis  for the no-fly orders against the plaintiffs. This portion of the decision should be rejected, both with respect to vagueness and with respect to the additional issue it raises (but which is not addressed in the opinion) of whether no-fly sanctions based on prior conduct not previously disclosed to be sanctionable violate the Constitutional prohibition on ex post facto laws.

With respect to procedural due process, the 9th Circuit panel stopped short of categorical approval of the TRIP 2.0 procedures for issuance of no-fly orders on the basis of secret internal TSA and TSC  review of undisclosed evidence and allegations including hearsay, statements by confidential informers, and electronic surveillance.  The panel left open the possibility that some other plaintiffs might, in some unspecified circumstances, be entitled to see (some of) the evidence against them, or to cross-examine witnesses.

But the degree of “discretion” allowed to the government, and the limited degree of “due process” the panel determined to be required by the Constitution, is made clear by the panel’s upholding of a no-fly order against one of the plaintiffs whose “notification letter stated only that he was included on the No Fly List based on ‘concerns about the nature and purpose of [his] travel to Yemen in 2010,'” with no further detail or evidence.

”Concerns about the nature and purpose of [his] travel to Yemen in 2010″?

“Travel with intent” is not a crime, and should not be the basis for adverse government action — even if it were proven to a jury beyond reasonable doubt.

Even if travel were not, as we believe it is, an act directly protected by the First Amendment’s guarantee of “the right of the people… peacably to assemble”, criminalization or other sanctioning of “travel with intent” would implicate and chill the exercise of other First Amendment rights.

The potential for invidious political abuse of penalties for “travel with intent” was perhaps most prominent in the 1969-1970 conspiracy trial of the Chicago Eight (later the Chicago Seven after one of the defendants, Bobby Seale, was first bound and gagged in court and then had the case against him severed from that against  the other defendants).

The Chicago Eight were charged with “crossing state lines with intent to incite a riot” outside the 1968 Democratic Party National Convention. It was the first prosecution under a new law criminalizing “crossing state lines with intent.” In light of the near-impossibility of proving intent without either mind-reading or speeches and statements, even some members of Congress who supported the law had been concerned that it would be found to be an unconstitutional infringement of speech protected by the First Amendment.

In reviewing the convictions in the Chicago Conspiracy Trial, the majority of a panel of 7th Circuit Court of Appeals upheld the “crossing state lines with intent” law against First Amendment challenge, but only by reading into it a requirement for an additional overt act. The court made clear its grave doubts about the Constitutionality of a law criminalizing “travel with intent” if it did not include a requirement for some additional overt act:

As to the Anti-riot Act, the government at times argues that travel with intent and not expression is the “gravamen of the offense” and that, therefore, the doctrines of the first amendment are not relevant to our determination of constitutionality. We are unable to accept this argument. There would be most serious doubt whether an individual’s travel with intent to do something inimical to the interests of the community, but without any step other than the individual travel being taken to effect the intent, could be made an offense. [United States v. Dellinger, 472 F. 2d 340 at 358, 7th Circuit, 1972]

Those doubts should have been, but weren’t, decisive in consideration of Kashem v. Barr, in which one of the plaintiffs was and is barred from air travel solely on the basis of allegations of travel with bad intent, with no disclosed allegation of any other bad act.

(Two of the three judges on the 7th Circuit panel in U.S. v. Dellinger overturned all of the convictions of the Chicago Eight on other grounds including prosecutorial and judicial misconduct and unlawful surveillance of the defendants and their attorneys. The third member of the panel concurred in overturning the convictions, but would have found the “crossing state lines with intent” statute unconstitutional on its face.)

The 9th Circuit panel that decided Kashem v. Barr also considered the Constitutionality of decisions based solely on predictions of future bad actions. The panel recognized that assessing “intent” as an element of the no-fly criteria necessarily involved attempting to predict future actions rather than fact-finding about past actions. But the panel upheld such predictions as the basis for no-fly orders (and, by implication, other sanctions):

The plaintiffs argue the No Fly List criteria are unconstitutionally vague because they provide no notice of what specific conduct they proscribe, leaving an ordinary person to guess what behavior might lead the government to determine that someone represents a threat of committing an act of terrorism; permit a threat finding based on conduct that is not unlawful, let alone clearly so; fail to specify the degree of risk inherent in the concept of a “threat”; and are based on predictive judgments about future criminal behavior that are inherently unreliable and error-prone. The plaintiffs contend the government has identified no behavioral indicators that can accurately predict whether someone will engage in terrorist activity.

We are not persuaded that the criteria are vague merely because they are based on a threat assessment involving a prediction of future criminal conduct….

As the Court explained in Schall: “[F]rom a legal point of view there is nothing inherently unattainable about a prediction of future criminal conduct. Such a judgment forms an important element in many decisions, and we have specifically rejected the contention . . . ‘that it is impossible to predict future behavior and that the question is so vague as to be meaningless.’”…

We are not persuaded, moreover, that the criteria are vague simply because they fail to delineate a set of factors relevant to a threat assessment. As the Court explained in Schall, “a prediction of future criminal conduct is ‘an experienced prediction based on a host of variables’ which cannot be readily codified.”… Furthermore, a conduct-based threat assessment is not vague merely because it takes lawful conduct into account.

Nor are the criteria vague merely because they fail to specify the “degree of risk inherent in the concept of a ‘threat.’”… Many perfectly constitutional statutes use imprecise terms like ‘serious potential risk’ . . . or ‘substantial risk’ . . . .”

This portion of the opinion goes further than almost any other recent appellate decision toward upholding the general Constitutionality of predictive “pre-crime” policing.

Neither the plaintiffs in Kashem v. Barr nor their attorneys have yet said whether they will petition for reconsideration by the 3-judge panel, rehearing en banc, or certiorari by the Supreme Court. Any of those forms of review are discretionary, so this could be the final decision in this case. That places even greater importance on what remedy is ordered in the broader blacklisting litigation (the no-fly list is only a subset of the larger system of Federal government blacklists) ongoing in U.S. District Court in Virginia in Elhady v. Kable, and the facial challenge to 49 U.S.C. § 46110 ongoing in the 1st Circuit in Sai v. Neffenger.