June 25, 2014

The federal government’s no-fly list, which prevents those suspected of terrorist ties from boarding flights in the United States or flying through American airspace, is reported to include more than 20,000 names—a number that metastasized after the Sept. 11 attacks. There’s a low evidentiary standard for getting on the list. Once on, it’s not only difficult to get off but almost impossible to find out why, exactly, one was added in the first place.

In a ruling on Tuesday, a federal judge recognized that the shadowy procedures surrounding the list are unconstitutional. Judge Anna Brown of the U.S. District Court in Oregon found that the government’s failure to provide any notice, explanation or meaningful way to challenge a no-fly designation violates the Fifth Amendment’s guarantee of due process, as well as Congress’s instruction to provide a chance to appeal one’s inclusion on the list and correct inaccurate information.

The new ruling came in response to an American Civil Liberties Union lawsuit brought on behalf of 13 U.S. citizens prevented from boarding flights, including four military veterans. The inability to fly caused them real harm.

Judge Brown cited prolonged separation from spouses and children, loss of employment opportunities and government benefits, the inability to participate in religious rites and pursue educational choices. She also cited the stigma of being identified to airline employees and potentially other travelers of having suspected ties to terrorism.

Hina Shamsi, one of the A.C.L.U. lawyers who argued the case, made the point that “it doesn’t help either national security or due process rights to have a bloated system in which many innocent people land on the list mistakenly without a meaningful process to clear their names.”

“This should serve as wakeup call to the government,” American Civil Liberties Union attorney Hina Shamsi said in a statement. “This decision also benefits other people wrongly stuck on the no-fly list because it affords them [an opportunity to challenge] a Kafkaesque bureaucracy.”

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