Two recent court cases, and follow-up articles and interviews with the plaintiffs and their lawyers, show how the highest priority for the U.S. government with respect to no-fly orders continues to be preventing judicial review of these government decisions, not preventing terrorism.

When an airline requests permission to allow an individual to board a flight, and the U.S. Department of Homeland Security (DHS) declines to give permission, that “Boarding Pass Printing Result” (BPPR) message is communicated only to the airline,  not the would-be traveler. Even the airline is not told the basis, if any, for the negative BPPR message. (The default is “No”, in the absence of affirmative, individualized government permission-to-board.)

Again and again and again, when people have challenged these no-fly orders in U.S. courts, the government has chosen not to disclose or defend the basis for its decisions that these people constitute a threat to aviation sufficient to justify restricting their right to travel.

Instead, the government has told the plaintiffs that they have been (although perhaps only temporarily) removed from “the no-fly list” (although with no assurance that they won’t again be prevented from traveling in the future), and then gotten their complaints dismissed in court as “moot”. Only rarely has it been possible to pursue these cases.

A special law restricting the jurisdiction of the Federal courts over “orders” of the Transportation Security Administration (TSA), 49 U.S.C. § 46110, has also been used to avoid fact-finding as to the basis, if any, for these orders. In our opinion this law is clearly unconstitutional. But the Constitutionality of this law has not yet been directly ruled on, and it has been the subject of little Congressional scrutiny.

If the government really thought these people were dangerous, it should have gone to court sooner to obtain injunctions or restraining orders restricting their freedom of movement. If challenged, it should have defended its actions before Federal judges in adversarial, evidence-based fact-finding proceedings.

The government has chosen to do neither, and has consistently responded to no-fly lawsuits by taking almost everyone with the means and will to pursue extended litigation off the not-fly list. This reflects the reality that the DHS sees judicial oversight of its actions, not terrorism, as the greater threat to its standard operating procedures. The top DHS priority is to be able to continue its practice of extrajudicial secret decision-making — disconnected from facts and based instead on fantasies of “pre-crime” predictive ability — about who is, and who is not, allowed to exercise their Constitutional rights.

The stories of Ahmad Chebli and Ashraf Maniar illustrate how this plays out in real life —  and how it wrecks real people’s lives and livelihoods.

Read More →

In one of the worst court decisions on the right to travel since Gilmore v. Gonzales,  a three-judge panel of the 4th Circuit Court of Appeals has reversed the decision of a U.S. District Court in the case of Elhady v. Kable that  the U.S. government’s system of extrajudicial administrative blacklists (euphemistically and inaccurate called “watchlists” although the consequences for the people who are listed include much more then merely being “watched”) is unconstitutional.

The decision comes in a class-action lawsuit brought on behalf of blacklisted Muslim  American travelers in 2018 by the Council on American Islamic Relations (CAIR). It folows a disturbing trend of decisions in similar cases by courts in the 6th Circuit and the 10th Circuit.

According to Gadeir Abbas, the CAIR attorney who has led the national campaign of lawsuits (many others of which are still pending) against post-9/11 blacklists, CAIR plans to petition for “rehearing en banc” by the 4th Circuit Court of Appeals:

A three-judge panel on the Fourth Circuit reversed a historic U.S. District Court decision that declared the entirety of the watchlist unconstitutional. In doing so, the judges ignored the dire consequences experienced by American citizens placed on the watchlist and took a dim view of what the Constitution requires. We are disappointed in this decision, but we remain undeterred. The fight is not over. CAIR will now ask the entire Fourth Circuit to review the case.

The 4th Circuit panel gets off on the wrong foot by declaring that it is reviewing a challenge to a “system vital to public safety”, despite the absence of any finding by the District Court to that effect or any evidence in the record to support such a claim. In fact, watchlists/blacklists are based on anything but actual dangerousness. If an individual were actually demonstrably dangerous, the government could and should either arrest them or apply to a court for an injunction restricting their dangerous actions. But the government has never done that with any of the people it has blacklisted.

The 4th Circuit panel opinion is dismissive of almost every aspect of the right to travel or of due process. It finds that government-imposed travel delays of hours or perhaps even days aren’t sufficient interference with the right to travel to constitute a legally-cognizable infringement of the right to travel, and that denial of air transport is Constitutionally insignificant because, “Plaintiffs can travel internationally by boat.”

Despite acknowledging that the blacklists/watchlists were “created by executive order” and not by any Congressional action, and that the Terrorist Screening Center “receives around 113,000 nominations annually and around 99% are accepted,” the 4th Circuit panel finds that no judicial review of these decisions is necessary.

Relying on an outdated history of entry and exit procedures when an intercontinental journey took weeks, and a delay of hours or days would only lengthen the journey time by a small percentage, the 4th Circuit panel brushes off the detention (in many cases at gunpoint), interrogation, and search of the plaintiffs. “Delays and inconveniences at the borders are… as old as the nation itself…. The experiences alleged by plaintiffs do not rise to the level of constitutional concern…. Given the government’s broad power to control movement across the nation’s borders, the burdens experienced by plaintiffs are not infringements of  ‘liberty’ within the meaning of the Due Process Clause.”

We join CAIR and the many friends of the court who filed briefs in support of the plaintiffs in Elhady v. Kable in looking forward to en banc rehearing and reversal of this ill-founded decision.

Update: Petition for rehearing en banc, Order denying petition for rehearing