Last July, the Ninth Circuit in Latif v. Holder held that the district courts have original jurisdiction over claims that the government failed to afford U.S. citizens and legal residents an adequate opportunity to contest their inclusion on the No-Fly list. The court noted that its decision was another step towards addressing the serious problem of “what should United States citizens and legal permanent residents do if they believe the have been wrongly included on the No-Fly list?”

Today, however, it seems an answer to this question has never been more pressing. To see why, one need only consider the dilemma facing Saadiq Long. Last November, Long, a U.S. citizen and navy veteran who had been working in Qatar, was prevented from flying back to the United States to his home state of Oklahoma. For six months Long attempted to figure out how he would return in order to visit his sick mother. However, just two weeks after Glen Greenwald of the Guardian wrote an article describing his plight, he was able to board a flight back home.

Long’s story would not be as noteworthy were it not for the fact that he was again denied a boarding pass when attempted to return back to Qatar from Oklahoma. As the Latif case describes, the frequency of U.S. citizens and permanent residents being stranded abroad is not insignificant. So even though Long’s family and legal team filed a redress with the Department of Homeland Security, started a petition which garnered thousands of signatures, and sent advanced notice to the FBI of his itinerary, he was once again placed right back on the No-Fly list. It is thus unsurprising that when Long was asked by AP reporters what he would now do while his wife and kids were in Qatar he could only respond that he would sit and wait until the FBI calls him.

The lack of clarity and opaqueness are unfortunate features of the government’s handling of the No-Fly list; it characterizes almost every aspect of the program. The most threatening consequence of this is that travellers like Long who have experienced previous difficulty flying are effectively deterred from travelling and acting as free individuals. Indeed, the ACLU’s principal claim in Latif v. Holder spoke to the enigmatic nature of the governments redress procedures.

The agency tasked with maintaining the No-Fly list is the Terrorism Screening Center (TSC). Established in wake of 9/11 the TSC is a multiagency organization within the FBI; its stated mission is to identify suspected or potential terrorists and to maintain a database available to other law enforcement agencies.

Briefs filed by the plaintiffs shed light on the TSC’s policies as they pertain to redress procedures filed by travellers. To be sure the TSC does not accept redress inquiries from complainants even though it is the agency directly in charge of the No-Fly list. Rather, the TSC reviews complaints forwarded to it by the Department of Homeland Security’s Traveler Redress Inquiry Program (TRIP). Individuals who seek redress after having been denied a boarding pass complete a standard form and submit it online to TRIP. After the complaint is forwarded to TSC and a determination is made, it instructs DHS TRIP to notify the complainant. DHS TRIP responds to the individual but “neither confirms nor denies the existence of any terrorist watch list records relating to the individual.”[1] Furthermore, the DHS TRIP letter gives no indication to the complainant if they are clear to travel on commercial flights in the future.

The result is that unlucky travellers who seek redress through the established means are left completely in the dark with no suggestion from the Government of what they should do. In cases where people need to travel for work, medical care, and to be with their families, the confusion often turns to desperation. There are now a number of examples of stranded travellers who have adopted extraordinary means to return home. Here is an excerpt taken from the ACLU’s blog in which Raymond Earl Knaeble IV, a US Army veteran, describes his ordeal after he converted to Islam and travelled to Yemen to study Arabic:

In August, I began a new journey in which I flew to Panama, then traveled by bus through Costa Rica,    Nicaragua, Honduras, El Salvador, Guatemala, and all of Mexico to the U.S. border at Mexicali. During this journey I was subjected to three separate detentions by government officials who searched my belongings and subjected me to extended interrogations. In Guatemala, I was questioned and followed. On one occasion, I had to run after my bus, which had left while I was being questioned. When I finally reached the United States, the country of my birth and my home, U.S. officials handcuffed me. They detained me for 10 hours, put me through intense interrogation, and searched all of my belongings, including my laptop computer and other electronic equipment. They released me at 2:30 in the morning and finally allowed me to enter my country.

The case of Latif v. Holder highlights problems attending a policy that inherently resists attempts at oversight and challenges to its discretion. The result is the increased likelihood that civil liberties will be undermined. Without assurances that one will be able to return home after travel abroad, the great freedom to travel that many Americans have historically enjoyed are materially limited.

While its clear that maintaining vigilance over the nation’s entry points is an important security concern, what remains problematic is the lack of concern with travellers who are clearly not a threat. This coupled with a scheme that places the TSC effectively beyond oversight makes for a compelling case for reassessing how the government handles aviation security. Latif certainly made a step in the right direction but it still leaves stranded Americans many more paces away from home.

 

 

 

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1 Comment

  1. Andrew Mamo says:

    Hi Khaled, thanks for your post!
    There are a few points that I’d like to follow up on. First, how does this intersect with yesterday’s decision in Clapper about standing and secret wiretaps? While the issues in each case are different, they both speak to questions of transparency and the accessibility of the courts in areas of national security concerns.
    More to the point with the No-Fly lists, how do they fit with the fundamental right to interstate travel, articulated in U.S. v. Guest (1966)? You note how important travel is for seeing family, studying, etc. And the Supreme Court has agreed that travel is a fundamental right protected by the Constitution. Is the argument that the right is not actually infringed because there are alternative modes of travel still available? Or that the lists can survive strict scrutiny? If you have any insights into this, and how a fundamental right to travel should be read in a mobile 21st century, I’d be interested in hearing them.

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