Judge rules no-fly list procedures are unconstitutional

A federal judge in Oregon ruled Tuesday that the Justice Department and FBI deprived 13 people of their constitutional right to due process by failing to disclose if and why they were included on the U.S. "no-fly list."

U.S. District Court Judge Anna Brown ruled that the FBI Terrorist Screening Center, which maintains the database, gives no adequate remedy for the 13 individuals to contest their inclusion on the list, which prevents travelers from flying on airlines within the United States. 

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"Without proper notice and an opportunity to be heard, an individual could be doomed to indefinite placement on the No-Fly List," Brown wrote in her opinion. "Moreover, there is nothing in the ... administrative or judicial review procedures that remedies this fundamental deficiency."

The individuals were represented in the case by the American Civil Liberties Union. 

The judge said it is not up to the court, however, to come up with a remedy. She said the FBI must come up with new procedures that strike a balance between the 13 individuals’ due process without harming national security. 

The FBI could either issue unclassified summaries of the reason each individual was included on the no-fly list or it could disclose the classified information to "properly cleared" lawyers. The judge also said the FBI must allow the 13 people to submit their own evidence. 

Brown wrote that in some highly sensitive cases, the government could still choose to not disclose the classified information but would still have to describe the nature and intent of the classified information and national security concerns.  

The FBI places individuals on the no-fly List if there is "reasonable suspicion" that a person is a known or suspected terrorist. The Department of Homeland Security allows individuals not allowed to board a flight to fill out an application for redress. 

But the 13 plaintiffs noted they were not provided any explanation for why they were not allowed to board or whether they would be able to in the future. They said they have not been given an opportunity to contest their inclusion on the list. 

The judge wrote that while the government interest weighs heavily in the case, it does not outweigh the lack of protections given to the plaintiffs. 

"Defendants' failure to provide any notice of the reasons for Plaintiffs' placement on the no-fly List is especially important in light of the low evidentiary standard required to place an individual in the [Terrorist Screening Database] in the first place," Brown wrote.