US government travel blacklists (euphemistically described by the government as merely “watchlists”) are being used to restrict airline travel and target searches of electronic devices of organizers of protests against US support for Israel’s military actions in Gaza, according to a complaint filed this week in Federal court by attorneys for two blacklisted Palestinian-American US citizens, Dr. Osama Abu Irshaid and Mr. Mustafa Zeidan.

It might be tempting to interpret the allegations in this complaint as indicative of the need for oversight or guardrails to prevent “abuse” of the blacklisting and travel control system. But we think it makes more sense to see this case as indicative of the risk of political weaponization inherent in the system of algorithmic, identity-based, extrajudicial administrative control of travel. This case shows why this travel control system should be abolished entirely, and why any restrictions on the right to travel should be imposed through existing judicial procedures for restraining orders and injunctions — adversary procedures that incorporate notice, the right to confront one’s accusers, and the other elements of Constitutional due process.

The heavy lifting that makes this use of travel controls to restrict political dissidents possible was carried out when airlines were required to install communication and control lines enabling the US government to decide, in real time, on the basis of information from airline reservations and travelers’ ID documents, whether or not to give airlines “permission” to transport each would-be passenger. That entailed more than $2 billion, by the US government’s own underestimate, in unfunded mandates imposed on airlines and their IT providers for changes to their reservation and departure control systems.

Now that this infrastructure is in place, only the ruleset needs to be changed to change who is, and who is not, allowed to travel by air, or how they are treated when they fly.

Names and other selectors (phone numbers, IP addresses, etc.) can be added to list-based rules. New category-based rules can be added to the ruleset. New real-time “pre-crime” profiling and scoring algorithms can be applied to fly/no-fly decision-making. New external databases and actors can be connected to the system.

All of this has, in fact, been done, making it harder and harder for anyone to exercise effective oversight over the system or the decisions generated by its secret algorithms.

The potential for targeting of dissidents and political opponents is a feature, not a bug, of secret administrative decision-making, especially in the absence of judicial review.

Here’s how it played out in this case, according to the complaint and other reports:

Dr. Abu Irshaid holds a Ph.D. in political science and is the Executive Director of American Muslims for Palestine (AMP). Dr. Abu Irshaid is married to a US citizen, but US Customs and Immigration Services (USCIS) sat on his application for naturalization as a US citizen for more than a decade without action or explanation, purportedly on the basis of his association with Palestinian-American community and political organizations, relenting and allowing him to become a US citizen only after he sued. This is characteristic of the US government’s blacklisting practices: It claims that individuals are “dangerous”, unfit for US citizenship, or unfit to travel by common carrier, but abandons those claims when challenged in court rather than trying to defend its decisions before a judge or jury.

From 2010 to 2017, Dr. Abu Irshaid was “selected” for additional searches and interrogation every time he traveled by air, and his cellphone was seized and the data on it was searched every time he entered the US. (See our recent tips for international travel with a cellphone.) Dr. Abu Irshaid infers that this was because he was on the US government’s “selectee” blacklist. This discriminatory treatment at airports let up after 2017, and Dr. Abu  Irshaid’s name isn’t among the 1.75 million names on the 2019 versions of the no-fly and selectee lists that became public in 2023.

But the extra searches and questioning of Dr. Abu Irshaid, including seizures and searches of his cellphones, resumed in 2024, at the same time that AMP had been denounced at a Congressional hearing as the hidden hand behind campus protests and Dr. Abu Irshaid’s was being ordered to produce documents and records  about the activities of the Students for Justice in Palestine for a Congressional investigation of student encampments.

According to the complaint in the lawsuit filed this week on behlaf of Dr. Abu Irshaid:

Upon information and belief, Dr. Abu Irshaid was, again, placed on the federal watchlist in 2024 and now remains on the federal watchlist.

Upon information and belief, Dr. Abu Irshaid was re-listed because of his work and activism opposing Israel’s ongoing military attacks on, and likely genocide of, Palestinians in Gaza.

Because Dr. Abu Irshaid helps lead civic efforts in the Muslim and Arab communities to speak out against Israel’s violence, the Government views the lawful
associations that Dr. Abu Irshaid maintains with suspicion and the contents of his phone as useful intelligence.

Because Dr. Abu Irshaid works to convene people of conscience to work towards justice for Palestinians, the Government believes his lawful associations can be used to map the civic infrastructure of a particular community expressing a view Defendants fear.

When he arrived back in the US from a trip abroad in June 2024, Dr. Abu Irshaid’s cellphone was seized and he was questioned for an hour about “his activities in his capacity
as executive director of American Muslims for Palestine”, who he met with while abroad, and other details of how he exercised his First Amendment rights as a US citizen.

The other plaintiff in the case, Mr. Zeidan, is also a US citizen. Like Dr. Abu Irshaid, Mr. Zeidan was on neither the no-fly nor the selectee list as of 2019. Recently, though, Mr. Zeidan has apparently been placed in the US government’s no-fly list, which causes even more extreme interference with his rights than placement on the “selectee” list.

As the complaint describes what has been done to Mr. Zeidan by his government:

Mr. Zeidan has fared even worse.

Mr. Zeidan travels to Jordan several times a year to visit and take care of his ailing mother.

After purchasing a ticket to see her in May of this year, he showed up to the airport, only for officials at the airport to tell him that he was forbidden from boarding his flight because of his status on the Government’s secret list.

The government has given Mr. Zeidan no explanation for why he’s been placed on the No Fly List after years of flying overseas without any issues.

Only one thing has changed in the last several months for Mr. Zeidan: he organizes a weekly protest to call for an end to Israel’s genocidal campaign in Gaza and the United States’ complicity in that genocide….

Since October 2023 Mr. Zeidan has actively led and organized pro-Palestinian protests throughout the High Desert region of Southern California, where he has frequently and consistently led anti-genocide community actions since October 8th.

On a weekly basis, Mr. Zeidan has been organizing protests and demonstrations and proudly displays and shares his activism with his larger community.

A few months after he began prominently and zealously advocating against genocide and for Palestinian rights, Mr. Zeidan discovered he was placed on the No Fly list
when he arrived at the Los Angeles International Airport for a scheduled flight on March 28, 2024.

Mr. Zeidan was given no information as to what he is accused of, or by whom, only that he was “identified as an individual who ‘may be a threat to civil aviation or national security'”.

High Desert for Palestine has been holding protests weekly in Victorville, CA, and at meetings of the City Council in nearby Hesperia. It’s unclear whether Federal agents were monitoring those events and blacklisted Mr. Zeidan as a protest “leader”, or whether their blacklisting of Mr. Zeidan was prompted by local officials, another Federal agency, or the Israeli government.

Dr. Abu Irshaid and Mr. Zeidan’s name numerous defendants in their lawsuut, both because the “Watchlisting Advisory Council” is an interagency body with numerous members, any one of which can “nominate” an individual for blacklisting, and to head off a “shell game” in which each defendant tries to evade accountability by pointing the finger at some other agency as being responsible for the decision to restict the plaintiffs’ right to travel.

We wish Dr. Abu Irshaid, Mr. Zeidan, and their lawyers from the Council on American-Islamic Relations (CAIR)  success in thier lawsuit. But if you think that, “If the watchlists have been misused, the courts will right the wrong”, you probably haven’t been following what’s happened in the last twenty years of litigation in cases like this.

For cases like this even to make it to trial or judgement, Congress needs to enact legislation  to create an explicit cause of action and remedy for  violations of the right to travel, as was proposed in the Freedom to Travel Act of 2021.

Even then, redress in the form of money damages will come long after the fact. That’s little comfort if, in the meantime, you’ve been arrested for overstaying your visa and are being tortured in a  foreign prison because your government won’t let you come home, or your mother is dying an ocean away without you. There’s a good reason why courts generally frown on prior restraint of the exercise of fundamental rights, even when it is sought from a judge in the form of an injunction or restraining order, rather than imposed  secretly by administrative fiat.

Self-imposed limitations on agency action are not the answer to abuse of agency power. What’s needed is to put no-fly orders and individualized targeting of travelers for more intrusive searches and seizures back where they belong,  in the hands of judges.