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A federal judge in Oregon has struck down the government’s no-fly list procedures as unconstitutional because travelers on it have no way to challenge the designation, the first such ruling on the classification created to fight terrorism.
In a 65-page ruling, U.S. District Judge Anna Brown held that the government had violated the constitutional rights of the plaintiffs because there was no effective way for them to challenge the government’s decision. She ordered both sides to come up with new procedures that would allow those who felt they were improperly on the list to raise questions about their inclusion.
“The court concludes 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,” Brown wrote in her ruling.
“Accordingly, on this record the court concludes plaintiffs’ inclusion on the no-fly list constitutes a significant deprivation of their liberty interests in international travel,” Brown said.
The no-fly list, established after the attacks of Sept. 11, 2001, is designed to prevent air travel to or from the United States by those whom the government suspects of having ties to terrorism. In the current suit, 13 Muslim American plaintiffs — four of them veterans of the U.S. military — denied having any links to terrorism and said they only learned of their no-fly status when they arrived at an airport and were blocked from boarding a flight.
The ruling brought praise from the winners.
“For years, in the name of national security the government has argued for blanket secrecy and judicial deference to its profoundly unfair no-fly list procedures, and those arguments have now been resoundingly rejected by the court,” ACLU National Security Project Director Hina Shamsi, one of the attorneys who argued the case, said in a statement emailed to reporters.
“Our clients will finally get the due process to which they are entitled under the Constitution. This excellent decision also 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. We hope this serves as a wake-up call for the government to fix its broken watch-list system, which has swept up so many innocent people,” Shamsi stated.
The Justice Department will review the ruling, spokeswoman Dena W. Iverson said in an email.
The no-fly list has about 20,000 names of people who are barred from flying into or from the United States. Those listed are people who investigative agencies, including the FBI, have decided have some sort of tie to suspected terrorist groups. About 500 people on the list are U.S. citizens.
The list and accompanying procedures have been criticized by civil rights groups who argued that the list was too broad and there is no oversight or process to challenge it. The government argued in response that there was an adequate way to fight inclusion on the list and that plaintiffs could petition a court for relief.
The national ACLU, along with its affiliates in Oregon, California and New Mexico, filed the lawsuit in June 2010 on behalf of the 13 U.S. citizens on the list, and that case was dismissed by the district court. But in July 2012, the 9th Circuit Appeals Court reversed the dismissal on jurisdictional grounds, allowing the lower court to consider the case.
One of the plaintiffs in the current case is Sheikh Mohamed Abdirahman Kariye, who is the imam of Portland’s largest mosque.
“Finally I will be able to challenge whatever incorrect information the government has been using to stigmatize me and keep me from flying,” Kariye said in a prepared statement. “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. After all this time, I look forward to a fair process that allows me to clear my name in court.”