For years, the United States government has placed individuals on the No Fly List not for having committed a crime but based on the suspicion that at some future time, they might.
For the past eight years, the American Civil Liberties Union has fought on behalf of 13 U.S. citizens and permanent residents who were placed on the list without being told why, cutting off their ability to fly to and from the U.S. and even over American airspace.
> This is the Kafkaesque nightmare in which our clients on the No Fly List have been trapped for eight years. And it’s the unfair system we’re challenging on their behalf in an argument Tuesday before a federal appeals court in Portland, Oregon.
> Throughout this long-running case, our clients have sought a fair process in order to clear their names and regain rights most Americans take for granted.
In 2014, the ACLU won its first victory, when a federal district court judge deemed the government’s procedures for individuals on the No Fly List to challenge their placement as unconstitutional.
Under the original procedures, the government would not even confirm if people were on the list or not.
> “[W]ithout proper notice and an opportunity to be heard, an individual could be doomed to indefinite placement on the No-Fly List,” the court found. “[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.”
> The court ordered reforms. As a result, the government told seven of our clients that they were cleared to fly, but it never told them why they’d been put on the No Fly List in the first place. It also announced in April 2015 that under its revised process, it would tell U.S. citizens and lawful permanent residents whether they are on the No Fly List — and possibly provide reasons. But when the government applied its reforms to our clients still on the list, it became clear just how inadequate the changes were.
> The government still refuses to provide meaningful notice of the reasons our clients are blacklisted, the basis for those reasons, and a live hearing before a neutral decision-maker. Much as before, our clients are left to guess at the government’s case and so can’t actually challenge government error.
Further, the government is placing people on the list who have committed no crimes and have never even been charged with wrongdoing, the ACLU said.
Rather, the government has placed some individuals on the list based on a prediction that they might engage in terrorism at some future point in time.
> The government eventually revealed that the criteria it uses to ban people from flying are all based on its view that they are a “threat” — a term that the government has never publicly defined and one that encompasses the entire universe of First Amendment-protected speech, association, and conduct that falls short of committing a prohibited crime.
> This is unconstitutionally vague, and it invites arbitrary and discriminatory government action. It is perhaps no coincidence that all our clients are Muslim.
The ACLU now heads to the Ninth Circuit Court of Appeals to ask that the government be forced to abide the Constitution and implement a reasonable and fair process for those who are placed on the No Fly List.