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According to leaked documents published by The Intercept earlier this year, there were more than 47,000 people on the No Fly List as of August 2013, including 800 Americans. Until now, none of these people have been allowed to successfully challenge their inclusion.  (Photo: Reuters)

Government's Secretive "No-Fly List" Regime Crumbling, says ACLU

'This is a victory for transparency and fairness over untenable government secrecy and stonewalling.'

Jon Queally

Marking the first major victory against the U.S. government's secretive 'No Fly List' on Friday, seven people who challenged their inclusion on the list were finally cleared and told they can once again enjoy the right to board an aircraft and fly commercially over domestic airspace.

Responding to a federal court order that resulted from a challenge brought by the ACLU on behalf of thirteen American citizens placed on the list, Friday's announcement by the Department of Homeland Security was described by one attorney involved with the case as the first ever significant blow to the "unfair and unnecessary secrecy regime" that surrounds the government list that now contains thousands upon thousands of names.

"For the first time ever, the unfair and unnecessary secrecy regime surrounding the No Fly List is beginning to crumble." —Noa Yachot, ACLU“This is a victory for transparency and fairness over untenable government secrecy and stonewalling,” said Hina Shamsi, director of the ACLU's National Security Project. “After years of being blacklisted and denied due process, seven of our clients know they can fly again, and the rest will soon be able to fight back against their unjust flying ban.”

One of the plaintiffs notified was Abe Mashal, a U.S. Marine Corps veteran and dog trainer who suffered professionally and personally when he could not travel far from his home in Illinois.

“More than four years ago, I was denied boarding at an airport, surrounded by TSA agents, and questioned by the FBI,” said Mashal. “That day, many freedoms that I took for granted were robbed from me. I was never told why this happened, whether I was officially on the list, or what I could do to get my freedoms back. Now, I can resume working for clients who are beyond driving distance. I can attend weddings, graduations, and funerals that were too far away to reach by car or train. I can travel with my family to Hawaii, Jamaica, or anywhere else on vacation. Today, I learned I have my freedoms back."

According to the Associated Press:

The government, citing national security, long maintained it could not tell anyone whether they were on the list or provide a reason for their inclusion. But U.S. District Judge Anna Brown of Portland ruled that people placed on the list have a constitutionally protected interest in traveling by air, and the right to due process when it's denied.

Brown ordered the government to notify the plaintiffs of their no-fly status by Friday. In the coming months, those who remain on the list will be told why and be given a chance to challenge those reasons.

Noa Yachot, also of the ACLU, explained why even for those not yet cleared to fly, the latest developments still count as a victory for transparency and due process. According to Yachot:

"Yesterday’s milestone isn’t only significant for the seven American citizens who can finally resume their lives," wrote Yachot on the ACLU's blog on Saturday. "It also makes clear to the six other clients in the case that they’re still banned from flying. And while that may not seem like good news, it’s the first time the government has confirmed – albeit through negative implication rather than a direct confirmation – that people are on the No Fly List. It’s also a very basic victory for due process, because under our Constitution, the government can’t watchlist people and deny them basic freedoms without then telling them they’re blacklisted and why."

According to leaked documents published by The Intercept earlier this, there were more than 47,000 people on the No Fly List as of August 2013, including 800 Americans. As the ACLU  highlighted in their suit, however, the only recourse for those placed on the list is to file a request with the Department of Homeland Security's Traveler Redress Inquiry Program (DHS TRIP). But because DHS only responds with a letter that merely confirms the request was received and reviewed, there is neither confirmation nor denial about whether their names are, in fact, on the No Fly List.

The documents published by The Intercept also showed that in August 2013, there were 680,000 people on the government’s master terrorism watch list despite that fact that even according to the government’s own records, 280,000 of them have no affiliation with a recognized terrorist group whatsoever.

The ACLU has criticized the government’s broader terrorism watchlisting system, which includes the No Fly List, as overbroad and an ineffective waste of resources that uses racial and religious profiling instead of hard evidence of actual wrongdoing.

As Yachot stated:

Our clients have been living in limbo for years, without the ability to challenge a secretive government system that has dramatically curtailed their freedoms. While yesterday’s notice is long overdue and doesn’t make up for the burdens our clients have long endured, it is good news for the seven who can fly again. And the others look forward to finally receiving from the government its reason for watchlisting them, so they can correct errors or innuendo and clear their names.

For the first time ever, the unfair and unnecessary secrecy regime surrounding the No Fly List is beginning to crumble.

The government has committed to revamping the No Fly List redress process more broadly. We expect it to make good on its word and move quickly to give everyone else on the list the opportunity to clear their names.

Our work is licensed under Creative Commons (CC BY-NC-ND 3.0). Feel free to republish and share widely.

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