A 3-judge panel of the 9th Circuit US Court of Appeals heard arguments today in Portland, Oregon, in Kariye v. Sessions, the third and latest round of appeals to the 9th Circuit in a challenge to US government “No-Fly” orders that was filed in 2010 as Latif v. Holder.

The lawsuit has survived two previous appeals to the 9th Circuit. But most recently,  the District Court dismissed the claims of those plaintiffs who remain blacklisted from domestic or international air travel. Today’s third round of argument in the 9th Circuit was on the appeal of that latest dismissal of the complaint.

Today’s oral argument was conducted in a courtroom closed to everyone except the judges, court staff, the parties to the case, and their attorneys. Presumably, the argument was closed because one of the issues was whether the government should have been allowed to submit evidence “ex parte and in camera” for the court to consider without the plaintiffs being able to see it, or whether the District Court and/or the Court of Appeals should consider such submissions.

If you think there’s something Kafka-esque about secret arguments about whether to consider secret evidence, we agree. It’s possible that redacted excerpts from the oral argument will be made available later in the 9th Circuit’s video and audio archives.

Legal documents in the case are available from the ACLU, which is representing the plaintiffs. The best summary of the issues in the current appeal, and the best overview of what’s wrong with the government no-fly decision-making procedures at issue in the case,  is in the plaintiffs’ opening brief in the current appeal.

The government defendants’ highest priority in this and other no-fly litigation has been neither to justify its orders to airlines prohibiting them from transporting the plaintiffs, nor to protect government secrets. Rather, the government’s foremost goal has been to avoid giving the courts any chance to review the basis for its no-fly decisions.

In other words, the first order of business for the government’s lawyers has been to establish that the faceless and unnamed bureaucrats who sit all day in an undisclosed location somewhere near Washington reviewing secret dossiers of supposedly “derogatory” information and making secret decisions of whom to blacklist — yes, we have an unknown number of such people in the USA today — are above the law.

The government has unleashed a shotgun attack of multiple arguments against the courts’ ability to hear this and similar cases, or to conduct more than a rubber-stamp review of the government’s self-serving and conclusory claims about the purported evidentiary basis and criteria for its no-fly decisions.

The government has tried to moot the complaints of many no-fly plaintiffs by taking them off the no-fly list. But that argument didn’t fare well in the most recent no-fly decision by the 9th Circuit. And as long as any of the plaintiffs in this case continue to be blacklisted, as some have, the case won’t go away.

After the US District Court for Oregon ruled that the no-fly decision-making procedures and the Kafka-esque DHS TRIP “redress” procedures lacked the degree of due process required by the US Constitution, the government changed its procedures to try to provide a figment of due process while preserving immunity from meaningful judicial review.

Following those changes, the District Court dismissed the remaining portions of the complaint by the remaining defendants (those still on the no-fly list) on the grounds that the District Court lacked jurisdiction to review the TSA’s decisions or decisions made through an inter-agency (a/k/a “hide the ball”) process in which the TSA participates.

In challenging that dismissal in the current appeal, the plaintiffs raise three main issues: (1) the unconstitutional vagueness of the government’s claimed self-imposed internal criteria for secret blacklisting decisions, (2) the unconstitutional lack of due process in even the revised blacklisting and DHS TRIP procedures,  and (3) whether the District Court (where evidence can be heard) or the Court of Appeals (which can only review the self-serving “administrative record” created and handed up by the TSA to support its decision) is the proper venue for adjudication of these Constitutional claims.

The plaintiffs also argue, although more as incidental issues, (4) that they should have been allowed to conduct discovery with respect to the defendants’ self-serving and unverified claims as to how they have modified the blacklisting system and how it actually operates, and (5) that the defendants shouldn’t be allowed to submit secret evidence and that the  Court of Appeals shouldn’t consider it.

The precedent cited by the government in support of its attempt to get the Court of Appeals to decide the case on the basis  of secret submissions at the appellate stage of proceedings is Gilmore v. Gonzales, which was wrongly decided by the 9th Circuit on the basis of factually false secret claims that Mr. Gilmore and his attorneys were unaware of until they were cited in the appellate decision, and thus had no chance to rebut.

Kariye v. Sessions is actually a relatively limited challenge to the system of no-fly blacklisting, in at least three respects:

1. It stops short of a facial challenge to the Constitutionality of  49 U.S.C. § 46110, the law which deprives trial courts of jurisdiction to review TSA orders. That facial challenge to  49 U.S.C. § 46110 — far and away the most significant and essential current challenge to the TSA — is being pursued valiantly but with great difficulty, pro se, by Sai, despite multiple physical and medical limitations on his ability to do so. Sai desperately needs, and wants, the assistance of counsel for this and his other legal challenges to specific TSA actions, policies, and practices.
2. It stops short of a claim that administrative no-fly orders are, as we believe, ultra vires (exceed the authority of the agencies responsible for issuing them, whether that is the TSA or some inter-agency hydra) or that the proper form of a no-fly order is that of a no-fly injunction or temporary restraining order issued by a judge through existing legal procedures for injunctions and TROs that restrict movement, such as those issued hundreds of times a day in domestic violence cases.
3. It defines the right to travel as a “liberty interest” protected by the Constitution, but stops short of addressing it as a right directly protected by the First Amendment’s guarantee of “the right of the people… to assemble.” The government’s  only one-sentence statement of the basis for barring one of the plaintiffs from air travel is that he had traveled “to a particular country in a particular year” (apparently Yemen in 2009).  That could, and we think should, have been challenged as an explicit statement of blacklisting on the basis of the exercise of the right to assemble, which should be considered per se unconstitutional.
4. It doesn’t raise any claims based on the International Covenant on Civil and Political Rights or other international treaty law recognizing and committing the US to provide effective protection for the right to freedom of movement.

For all these reasons, a victory in this case would leave much work still to be done in the courts and by Congress to bring the TSA and its inter-agency partners within the rule of law. But it’s a significant and valuable attempt to rein in the TSA and the wider system of US government blacklisting, and we’ll be watching its outcome closely.