Over the past year, the U.S. government’s No-Fly List, containing the names and biographical data of suspected terrorists, has more than doubled from 10,000 to 21,000. About 500 of such individuals are U.S. nationals, a broad term that encompasses both U.S. citizens and legal permanent residents. The recent surge in additions to the list began after the failed “Christmas Day Bomber,” the 2009 incident in which a Nigerian man boarded a Detroit-bound jet with an explosive hidden in his underwear. Challenges to the No-Fly List and related government procedures over the past five years indicate that the discriminatory application of criteria as well as the limited safeguards for U.S. nationals have gone too far, seriously compromising the liberty of the individual with potentially ruinous consequences on that person’s family, livelihood, and reputation.
The No-Fly List in addition to another related list – the Selectee List and together the “watchlists” – were created in mid-December 2001. The No-Fly List includes individuals who may not receive a boarding pass for a flight to, from, over, or within the United States; individuals on the Selectee List are stopped and subject to additional security screenings before determinations of eligibility of boarding pass are made. Originally, there were 594 named individuals on the No-Fly List and 365 on the Selectee List. Although the Department of Homeland Security’s Transportation Security Administration officials at airports and other ports of entry use the lists, the data is obtained from and managed by the Terrorist Screening Center (TSC), administered by the FBI. According to the Transportation Security Intelligence Service (TSIS), additions to and removals from both lists are based on requests and information from federal law enforcement or other federal intelligence agencies. On average 1,000 changes are made daily to the U.S. watchlists. The two primary criteria for determining addition are whether the individual presents a threat to civil aviation and whether there is sufficient unclassified biographical data to ensure proper identification.
After the failed 2009 attempt referenced above, government officials sought to make “strong improvements” on the “watchlisting process.” Among the changes was the implementation of a new criterion that a person does not have to be considered only a threat to aviation to be placed on the list. Under the new lowered standard, an individual need be considered a threat, broadly construed, to national or international security in order to be placed on the list. Last month, the Council on American Islamic Relations (CAIR) documented the experiences of the list’s “latest targets,” two Muslim men of Libyan origin who were living in Portland, Oregon and traveled to Libya after Qaddafi’s fall, one to visit family and another with a Oregon relief agency to perform humanitarian work. When they tried to return home to the U.S., both were barred from doing so: one was subjected to a lie detector test and told that the officers were “convinced of his guilt” and specifically mentioned his discussing Sharia with other Muslims – “an indicator of criminal wrongdoing.” The other was detained and jailed for two days in London. CAIR asserts that the U.S. has effectively removed the rational basis criteria for placement on the list – namely the “derogatory” information available on the individual – resulting in its dramatic ballooning. Additionally, through requests for legal assistance CAIR has compiled some indicators on how the new standard is being applied, with federal agencies flagging individuals who serve Muslim populations as aid workers to those with mere social or professional relationships with other Muslims, findings that CAIR deems are, in effect, punishment for association and for being Muslim.
Apart from these indicators, the secrecy of the list as well as the lack of notice to individuals placed on the list has already given rise to several lawsuits, including a successful petition by Ms. Rahinah Ibrahim, a Malaysian woman of Muslim faith and a doctoral student at Stanford before the proceeding with no criminal record or ties to terrorism. Ibrahim sued the government in Ibrahim v. Dept. of Homeland Security, challenging her inclusion on the No-Fly List when she was arrested before a flight to Malaysia to visit family. Her inclusion was used to revoke her student visa and prohibit her from completing her degree. The District Court dismissed her case on the ground that federal law prescribes that all challenges to TSA orders to be filed directly in a federal appeals court where there is no right to a jury or discovery. However, on appeal, the Ninth Circuit held that federal district court judges could hear challenges to the No-Fly List because the names are maintained by the TSC and, as a division of the FBI, it is not covered under the same statute as procedures for challenging the TSA. Since that decision in 2008, the ACLU also filed suit in 2010 on behalf of fifteen
U.S. nationals, some of whom are Muslims, challenging their No-Fly List inclusion asserting that they have not been told why they are on the list or given a meaningful chance to contest their inclusion.
While Ibrahim v. Dept. of Homeland Securitypresents a benchmark for Muslim civil liberties in particular, the standards for placement on the No-Fly and Selectee Lists must become clearer and require more stringent proof of a suspicion of terrorist affiliation before an individual is included. Failure to do so will only serve to further isolate American Muslims, the community that has been the most negatively impacted by discriminatory application of the new criterion. As the severe consequences of inclusion include curtailing liberty and freedom of movement and as relief for the innocent is expensive and time-consuming if ever procured, all involved government agencies must take immediate steps to reduce costly errors in the continued development and ongoing maintenance of the watchlists.
 Ibrahim v. Department of Homeland Security, 538 F.3d 1250 (9th Cir. 2008).
 https://sites.google.com/site/baamlnet/recent-news/formerbaamlpresidentwins2009clayaward; 49 U.S.C. §46110(a) for the exact provision
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