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Constitutionality of the No Fly List

By   /  April 18, 2016  /  No Comments

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For over ten years the federal government has used the No Fly List to ensure that individuals are barred from flying on U.S. airlines or over U.S. airspace because they were considered terrorists.[1]  Federal courts, historically, have dismissed many cases in the post-9/11 era where plaintiffs raised constitutional challenges to watch lists on “jurisdictional or other preliminary grounds.”[2] However, in 2014, two district courts in the Ninth Circuit ruled that the bare procedures available to challenge an individual’s state on the No Fly List violated due process and the government chose not to appeal either decision.[3] Beyond the Ninth Circuit, other District Courts began to take a stand as well. The District Court for the Eastern District of Virginia refused to dismiss No Fly List cases despite objections from the government regarding state secrets.[4] However, this does not address what future remedies there should be when tackling the issue an individual finds themselves facing when they are kept from flying due to being on the No Fly List.

The flagship case was Latif v. Holder, where the ACLU brought suit on behalf of thirteen U.S. citizens and permanent residents who were barred from flying. The Judge from the District of Oregon stated that being placed on the No Fly List “implicated liberty interests protected by the Due Process Clause.”[1] When the decision was appealed, the District Court of Oregon ruled that the existing procedures to contest being on the No Fly List were ineffective and the government was ordered to create constitutionally proper procedures.

But what is there to do when there is nearly non-existent, if any, substantive due process?  To amend a substantive due process issue, you must turn to the procedure being used to violate due process and change it. In this case, individuals are not provided a process that will bring about a remedy that will be either efficient for the government or satisfactory for the individual burdened with this problem. The questions that require answering are as follow: 1. What should be the amended procedure to allow for proper substantive due process?, 2. Who should be in charge of the newly implemented procedure and remedies?, 3. What sort of remedies should be available once a process is in place?, and 4. Whether and which courts should be tasked with dealing with the cases that arise from placement on the No Fly List?

Substantive Due Process limits what the government can do even if the government is providing the proper procedure. However, in this case, the process put into place is anything but the appropriate process. In this case, there is an argument to be made that this process that has been put into place may violate a U.S. citizen or person’s right to travel and movement and does not allow for a way to satisfactorily adjudicate the issue for correction. The right to travel encompasses at least three different components, but in this case, the right to travel means protection of the right of a citizen of one State to enter and to leave another State.[1] Under Eunique v. Powell, the Ninth Circuit recognized the right to international travel as a protected right under substantive due process.[1] The Supreme Court has also had some things to say with regard to international travel, which can be seen in Apthekar v. Secretary of State, which quoted Kent v. Dulles in saying “this Court declared that the right to travel abroad is ‘an important aspect of the citizen’s ‘liberty“ guaranteed in the Due Process Clause of the Fifth Amendment.”

Thus, to amend the No Fly List complaint process to be in compliance with the law of the Constitution and the Supreme Court, an appropriate due process procedure would need to be put into place. Such things that could be amended would be to allow for appropriate clearance level attorneys, who are able to see the classified materials used against the individual, to work on behalf of the complaining individuals. Another amendment could be a judge or court that can see classified materials, or can sit in camera, to determine the validity of the documents used to put a person on the No Fly List. Finally, an amendment option could be to create a commission or committee whose sole purpose it is is to review individuals on the No Fly List to ensure that those placed on the list, whether they have complained or not, are correctly placed on the list before they even have a chance to make a complaint and use the TRIP process. This would relieve the burden of a violation of an individual’s Constitutional rights.

Once the process has been amended, who runs the new procedure is an important task that needs assigning. It is more appropriate that the Department of Homeland Security, who controls the Transportation Security Administration (the TSA), continues to maintain the No Fly List as they are tasked with protecting the United States’ borders via the Customs and Border Patrol, Immigration and Customs Enforcement, and the Citizenship and Immigration Services. Because the Department of Homeland Security already contains all these border protecting bodies, some of which are specifically stationed at the airport, it makes sense that they maintain the No Fly List and, thus, are the first line of inquiry when an individual has a complaint regarding placement on the No Fly List. Provided the Department of Homeland Security continue to work in sync efficiently, then that part of the current procedure can stay the same in who handles the issue of placement on the No Fly List.

It is also possible for a separate commission or committee to be put together to handle running the No Fly List since it might be even better for the sake of efficiency and expediency that a separate entity maintains the list, reviews complaints lodged about being placed on the No Fly List, and whatever follows through with regard to remedies, whether it be in the form of Due Process or name removal.

The next issue to be cleared away is what sort of remedies should be available to an individual once they have gone through the process and have been found to be improperly placed on the No Fly List. The most obvious answer for future complaints would be the individual should be notified that they have been removed from the No Fly List if they are found to be incorrectly placed on the list. However, if there is reason to believe that the individual is correctly placed on the list, the remedy that should be given to the individual is to be given the information necessary to contest the placement if they want to dispute the placement. With the new procedure in place, including a lawyer with the appropriate clearance and need to know for the case, assigned to the individual contesting the placement, it would be possible for the case to be handled responsibly and the individual could find redress through the actual process by being removed from the No Fly List if the case against them is insufficient. The opposite is also true though in that the federal government could be found to correctly have placed the individual on the list and need fear no backlash on the basis of constitutionality of their methods.

Finally, the last question to be addressed is whether and which courts should be charged with adjudicating cases that arise out of the No Fly List. Article I courts could be the appropriate venue because the No Fly List is maintained by the Department of Homeland Security and reviewed by the FBI when a complaint is lodged. Both of these departments fall under the Executive Branch of the government, which might make it conducive to be adjudicated under the Executive Branch by creating a court or commission that is tasked with handling the No Fly List cases appropriately. However, this may become a conflict of interest they could give bias in favor of the agencies they would purport to challenge because both would fall under Article I of the Executive Branch and there could be the potential to sway or bias these courts or commissions in favor of the Department of Homeland Security or the FBI.

If it is found that an Article I court is insufficient to handle cases arising from the No Fly List, then it is possible that Article III courts will continue to be the court of choice with regard to these cases. Because these cases handle sensitive, federal question material, it would be appropriate for the federal district courts to continue having jurisdiction as, by now, they would be well-equipped to handle the classified materials that exist in these cases. Judges in the federal district courts, some more than others, are used to hearing and reading classified material, operating in camera to protect classified materials, and are more understanding of the restrictions the government has with regard to allowing sensitive material to be shown. However, while they may be more understanding, these judges are also potentially less sympathetic and may try harder, as they have been in recent cases, to ensure individuals complaining about being incorrectly placed on the No Fly List are allowed their day in court.

After Latif, the cases in complaint of the No Fly List have steadily come to court more and more, the government no longer trying to object to them, especially after losing multiple appeals. The Department of Justice has come to terms with the unconstitutionality of the No Fly List, but the list still remains in play. Thus, if the No Fly List is going to continue existing and is enforced, it is necessary to amend the list and the process of complaining against inclusion on the list to make the process constitutionally adequate. As of now, this process is constitutionally unsound and violates U.S. citizens and persons constitutional rights, but it can be rectified by implementing an amended process. However, even after the process is updated, it still remains that Congress and federal courts should question the foundation of the No Fly List itself in that those who have not been charged with any crime are still considered too dangerous to fly under any circumstances and that is still a violation of their Due Process clause.[1]


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