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'Kafkaesque' No-Fly List Ruled Unconstitutional By Federal Judge

In landmark case, judge rules secretive list violate rights to due process and travel by air

TSA airport officials check evacuees and baggage with security scanners in New Orleans, LA, August 30, 2008. (Photo: Jacinta Quesada/FEMA/Wikimedia Creative Commons)

TSA airport officials check evacuees and baggage with security scanners in New Orleans, LA, August 30, 2008. (Photo: Jacinta Quesada/FEMA/Wikimedia Creative Commons)

In a watershed decision, a federal judge on Tuesday ruled that the 'No-Fly' list—which bans tens of thousands of people suspected of 'terrorism' from boarding flights—is unconstitutional because it violates the right to due process and travel by air.

The decision was heralded by plaintiffs in the case, which was brought four years ago by the American Civil Liberties Union on behalf of 13 Muslim-Americans who were placed on the list with no explanation why or avenue for redress.

“I have been prevented by the government from traveling to visit my family members and fulfill religious obligations for years, and it has had a devastating impact on all of us," said plaintiff Sheikh Mohamed Abdirahman Kariye, who is the imam of a Portland, Oregon Mosque, in a press statement. “Finally I will be able to challenge whatever incorrect information the government has been using to stigmatize me and keep me from flying."

U.S. District Judge Anna J. Brown, based in Portland, Oregon, wrote in her decision that “for many international travel is not a mere convenience or luxury in this modern world. Indeed, for many, international travel is a necessary aspect of liberties sacred to members of a free society.”

She continued, “[W]ithout proper notice and an opportunity to be heard, an individual could be doomed to indefinite placement on the No-Fly List. … [T]he absence of any meaningful procedures to afford Plaintiffs the opportunity to contest their placement on the No-Fly List violates Plaintiffs’ rights to procedural due process.”


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Brown did not eradicate the list altogether, but ordered the U.S. government to create a "new process" that allows for appeals and redress. She also ordered the Department of Homeland Security to tell the plaintiffs why they are on the list and give them an opportunity to clear their names.

Created in 2003 in the aftermath of the September 11th attacks, the No-Fly list, as of 2012, included over 21,000 people, according to the Center for Constitutional Rights. People placed on this list are not told why or given a meaningful opportunity to appeal.

The No-Fly list, however, is not the only one of its kind. The U.S. Terrorist Watch List, also created in 2003, currently includes up to one million people, who are listed based on secret evidence and denied the right to due process.

In addition to the ACLU case, others have challenged the No-Fly list, including four Muslim-American men who charged in another lawsuit filed in April that they were placed on the list as retaliation for refusing to inform and spy on their communities.

According to ACLU National Security Project Director Hina Shamsi, one of the attorneys who argued the case, Tuesday's ruling "benefits other people wrongly stuck on the No-Fly List, with the promise of a way out from a Kafkaesque bureaucracy causing them no end of grief and hardship."


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