In a decision issued last week, the 5th Circuit Court of Appeals has offered the first appellate opinion on whether there is any basis in law for the U.S. government’s creation and use of a system of “watchlists” (blacklists) to determine who is allowed to travel by air and how they are treated when they travel, as well as to impose other sanctions.

Numerous lawsuits have challenged various aspects of the government’s blacklistsing system and its application to airline passengers, but this is the first time that any U.S. appellate court has ruled on whether Congress has given the various agencies that created, maintain, and use these lists any statutory authority to so so.

The 5th Circuit panel found multiple mentions in Federal law of the use “databases” for “screening” of airline passengers. But that begs the question that was actually presented. As the Council on American-Islamic Relations (CAIR) argued in their brief on appeal:

Below, both the district court and the Government presented a mishmash of statutory language, none of which clearly authorizes any of the Defendant agencies to create, maintain, administer, or use a million-name list to infringe on the liberty of U.S. citizens and foreign nationals alike….  High-level congressional authorization of general law-enforcement and national-security activity is self-evidently inadequate to satisfy the major questions doctrine. Even the more precisely-worded statutory provisions that the Government offers to justify specific uses of the watchlist fall short because they nowhere authorize the creation or maintenance of the watchlist in the first place. At bottom, a survey of the Government’s cited authorities reveals that Congress did not create the watchlist—unelected bureaucrats did….

The district court did not conclude that the text of any specific statute clearly authorized federal agencies to create, maintain, and use the watchlist. Instead, the district court followed the Government’s lead and cobbled together (supposedly) clear statutory authorization from a hodgepodge of different laws, none of which—whether viewed separately or together—comes close to supplying clear congressional authorization….

Other cited provisions may grant TSA the power to use the watchlist to screen passengers but nowhere authorize any agency to create, maintain, or administer the watchlist in the first place.

Congress’s after-the-fact acquiescence to an agency’s power grab cannot provide the clear congressional authorization for the agency’s action. Rather, Congress’s clear authorization must come before the agency asserts the power to significantly intrude on the liberty of millions of Americans.

The 5th Circuit ruling on the appeal upholds the decision dismissing a class-action lawsuit filed in 2018 on behalf of Muslim U.S. citizens who suspected that the barriers and difficulties they experienced when they tried to travel by air — from being prevented from boarding flights to being detained, searched, interrogated, and delayed for hours so that they missed their flights — were caused by the government’s blacklisting and travel control (euphemistically referred to as “watchlisting”) scheme.

Neither the the initial ruling by District Court Judge Brantley Starr in Dallas nor the opinion by the 5th Circuit panel upholding that ruling meaningfully addresses whether there was authority either (1) to create these blacklists, (2) to add names (including those of the class of plaintiffs in the lawsuit) to these lists by extrajudicial administrative fiat, or (3) to deny the right to travel by common carrier or subject travelers to more intrusive suspicionless searches on the basis of watchlist entries not based on probable cause or judicial orders.

The government refused to confirm whether any of the five named plaintiffs were on any of its travel or other blacklists, or whether they were on the “no-fly” list or the much smaller “selectee list”, until they lawyered up and sued.  After the lawsuit was filed, the government admitted that one of the five named plaintiffs, Mr. Adis Kovac, had been on the “no-fly” list, but claimed that his name had been removed from that list. What the government didn’t tell Mr. Kovac or the court was that when Mr. Kovac’s name was removed from the “no-fly” list, it was added to the “selectee” list, insuring that he would still have great difficulty flying.

Mr. Kovac is the only one of the five named plaintiffs whose name shows up on the 2019 versions of either the “no-fly” or “selectee” lists, which became public in 2023. That could mean that the other four named plaintiffs’ names had been removed from the “no-fly” list by 2019, without being added to the “selectee” list. A more likely explanation, however, is that the other four named plaintiffs weren’t on either the “no-fly” or “selectee” list, but were selected for denial of air travel or special (mis)treatment when they traveled on the basis of  profile-based rules in the traveler “vetting” algorithm, rather than list-based rules.

One of the problems with both the District and Circuit Court opinions in Kovac v. Wray is that address themselves only to “watchlists”, and not to the rest of the more complex (and not entirely list-based) real-time decision-making process by which the government decides whether to send an airline a “Boarding Pass Printing Result” (BPRR) after the airline sends identifying and itinerary information for a specific passenger and flight.

The FBI has the authority to maintain a list of “wants and warrants” in the problematic NCIC database, and to arrest people on the basis of warrants as listed in NCIC. But that doesn’t mean that the FBI has the authority to list people in NCIC as subject to arrest on its own say-so, without judicial action, or that it can arrest someone solely on the basis of a “lookout” in NCIC that doesn’t indicate the existence of a judicially-ordered warrant. Nor does it mean that the FBI has the authority to compel you to identify yourself so that they can tell if you are the subject of such a warrant.

Similarly, authority for Federal agencies to maintain a travel “watchlist” or to use it to “screen” air travelers does not imply authority to add names to that list or prevent them from traveling except on the basis of judicially-issued injunctions or restraining orders.

“Screening” is supposed to consist of administrative searches limited to weapons, explosives, or physical items posing a threat to aviation safety — not pre-crime predictions about individuals who have not been accused or convicted of any crime. There’s still nothing in the law authorizing the TSA to require travelers to identify themselves, whether to enable ID-based profiling and ID-based controls or for any other purpose

The willingness of Federal courts to allow administrative agencies to usurp judicial authority to make decisions about the right to travel and the right to be free from unreasonable and suspicionless searches and seizures shows why Congress needs to enact the Freedom to Travel Act to make explicit in the law how and by whom these decisions should be made: by judges, through search or arrest warrants, injunctions, or restraining orders.