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An Appeals Court Opens the Door to Judicial Review of the "No Fly" List: A Promising Step Toward Providing Passengers with Due Process


Thursday, Sept. 11, 2008

For some airline passengers, the no-fly list has been a continuous nightmare. Being on the list can mean being detained at airports and subjected to extensive questioning and searches. Meanwhile, getting off the list has often proved difficult or impossible.

Initially, the Transportation Security Administration (TSA), which administers the list, had no procedures in place for those who asserted they were wrongly listed. Over time, the TSA has offered varying processes that travelers have found confusing, opaque, and cumbersome. Moreover, it has been unclear where passengers whom the TSA turns down can go for help.

Fortunately, relief may finally be in sight - thanks to a lawsuit brought by a former Stanford graduate student from Malaysia, Rahinah Ibrahim. Ibrahim sued the Department of Homeland Security (DHS) and the TSA in federal court after she was told she was on the list, handcuffed, and detained by California law enforcement.

Recently, Ibrahim gained a victory in the suit: The U.S. Court of Appeals for the Ninth Circuit ruled, 2-1, that a traveler can ask a federal trial court to decide whether her name should be included on the list and whether being listed violates her civil or constitutional rights.

In this column, I'll explain why I believe this ruling was correct, and why it will have a lasting impact on the rights of travelers who seek redress, hoping to clear their names for good.

The No Fly List: Broad Impact, and Many Errors in Who Is Listed

The "no fly" list is composed of the names of several hundred thousand travelers who are deemed to pose a risk of terrorism or another type of security threat and therefore will be prevented from ever boarding a plane. (In contrast, the passengers who appear on the "selectee" list will be asked to undergo additional searches before flying). These lists emerged in the 1990s but were expanded significantly in the wake of the September 11, 2001 terrorist attacks.

Civil liberties groups have argued persuasively that the lists are rife with errors (especially when multiple persons share the same name) and lack meaningful procedural checks. In response to complaints, the TSA eventually established an ombudsman's office to review passengers' claims that they were mistakenly listed. Its findings were shocking: In December 2005, the Director of the TSA Redress Office admitted that over 30,000 people have wrongly matched the list since September 11, 2001 (as I discussed in a previous column).

Those mistakes can have serious consequences: An April 2006 report by DHS's Privacy Office stated that "individuals who are mistakenly put on watch lists or who are misidentified as being on these lists can potentially face consequences ranging from inconvenience and delay to loss of liberty."

Unfortunately, according to the director of TSA's Redress Office, some airline passengers report that, even after they are cleared, they still continue to have problems. Even those who display an official TSA letter stating they have been delisted may find that the letter is disregarded at the airport.

The Case of Ibrahim v. Department of Homeland Security

That brings us to the Ibrahim case - which offers hope to travelers who face this situation. In January 2005, Rahinah Ibrahim, a mother of four and then a doctoral student at Stanford, was prevented from boarding a United Airlines Flight from San Francisco to Malaysia because her name appeared on the federal no-fly list. Ibrahim, however, had no criminal record or links to terrorism.

The TSA was contacted, and local police detained Ibrahim and then handcuffed her in front of her teenage daughter. She did not board her flight, but instead was taken into custody for two hours. She was then released based on orders from the FBI.

Ibrahim returned to the airport the next day, and was allowed to fly home after undergoing additional "enhanced" searches. Since 2005, she has remained in Malaysia where she finished her doctorate and now teaches at the university level.

After being detained, Ibrahim filed her suit against the TSA and the DHS, which contests her inclusion on the no-fly list, alleges that her search violated the Fourth Amendment, and alleges that she was subject to discrimination. Initially, her suit was dismissed on procedural grounds: It had been filed in federal district court, but the district judge ruled that challenges to TSA orders must be filed directly in a federal appeals court.

Ibrahim appealed this ruling to the U.S. Court of Appeals for the Ninth Circuit. In a split decision written by Chief Judge Alex Kozinski, a majority of the three-judge panel that heard the case ruled that the no-fly list, though maintained by the TSA, is actually compiled by the Terrorist Screening Center, which is housed under the FBI. Since the FBI and its branches can be sued in a trial court like most other federal agencies, the panel concluded that Ibrahim's suit was properly filed in federal district court.

Judge Kozinski explained persuasively why it made no sense to assign no-fly list cases to federal appeals courts in the first instance: "Just how would an appellate court review the agency's decision to put a particular name on the list? There was no hearing before an administrative law judge; there was no notice-and comment procedure... For all we know, there is no administrative record of any sort for us to review... So if any court is going to review the government's decision to put Ibrahim's name on the No-Fly List, it makes sense that it be a court with the ability to take evidence" - in other words, a trial court. (I have omitted here the citations Judge Kozinski used, as well, to support his point.)

Why This Ruling is Important

This ruling is very significant, for this is the first judicial decision granting individuals the right to seek review of their status on the "no fly" list before a judge and jury. This decision will allow individuals to seek additional evidence about their inclusion on the "no fly" list, and it will allow trial courts to serve as independent checks on the work of the TSA and the Terrorist Resource Center - which, as noted above, compiles the list that the TSA administers.

Thanks to the Ninth Circuit panel's wise decision, passengers who have been adversely impacted by the "no fly" list will be able to seek vindication of their rights before an independent tribunal - rather than merely asking the TSA to de-list them. As for Ibrahim, while this was a procedural ruling, it was a very favorable one, and while it has not yet given her her day in court, it has allowed her to go to court to try and clear her name.

Anita Ramasastry is an Associate Professor of Law at the University of Washington School of Law in Seattle and a Director of the Shidler Center for Law, Commerce & Technology. She has previously written on business law, cyberlaw, computer data security issues, and other legal issues for this site, which contains an archive of her columns.

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