One Perspective: Reforming the no-fly list presents special challenges

Scott Forsyth, The Daily Record Newswire

Remember Asif Iqbal of Henrietta? He was a permanent resident and now is an American citizen. Before and after 9/11, he worked for a software consulting firm and frequently flew on business.

His check-ins proceeded smoothly until Feb. 18, 2002. That morning, when the airline clerk typed in his name, the computer flashed “Security Alert — Passenger Name on No-Fly List — Call Local Law Enforcement.”

Four deputies came over and interrogated Asif for 90 minutes before letting him go. Needless to say, he missed his flight.

What was Asif’s sin? He later learned that U.S. forces had detained a British citizen in Afghanistan with the same name as his. The government locked up the British citizen at Guantanamo Bay yet saw fit to place the name on the no-fly list.

For months TSA security officials would hassle Asif at the airport, because of the “match.” The hassle continued even after the government released the British subject, concluding that he was not a threat to national security.

Asif appealed to TSA administrators, elected officials and the media to no avail. He eventually worked out a special arrangement with the carriers he flew to avoid the alerts.
The government will tell you Asif’s problems are a thing of the past, because in 2007 it adopted a new complaint procedure called DHS TRIP.

Many individuals vehemently disagree, citing personal experiences almost as bad as Asif’s. In 2010, 13 persons denied boarding banded together and, with the assistance of the ACLU, sued the government.

The plaintiffs claim that not being allowed to fly violates their fundamental right to travel. They also assert the system by which the government places and keeps persons on the no-fly list violates procedural due process, Latif v. Holder, No. 3:10-cv-00750-BR (Dist. Ct. Or. 2010).

What must a person do to get on the list? We do not know. The government claims the criteria to be “sensitive security information.”

What do we know about the list? It is a subset of the database of identifying information about persons known or reasonably suspected of being involved in terrorist activity. The Terrorist Screening Center maintains the database but assorted federal law enforcement and intelligence agencies actually nominate the persons to be included in the database. TSC acts as a clearinghouse, telling TSA and local law enforcement whom to be on the look out for, without giving any reasons.

A person upset about being denied boarding or subject to additional screening files a complaint with the Department of Homeland Security. DHS refers the complaint to the clearinghouse, which refers it to the agency that nominated the person. That agency “determines whether the complainant’s current status in the (database) is suitable based on the most current, accurate and thorough information available.” Adjustments in status may be made.

Whatever the outcome, the DHS sends the complainant a nondescript letter that “does not confirm or deny” whether the individual is on the list. Saying more, the government contends, will reveal the secret criteria and invite those not listed to engage in terrorism.

If the complainant is dissatisfied with the letter, he can appeal to the Circuit Court of Appeals, pursuant to 49 U.S.C. § 46110. Unfortunately, this statute only gives the court jurisdiction over TSA and not the clearinghouse or any of the agencies which nominate persons to the list and have the power to remove them.

At a hearing last summer, an attorney confirmed the government’s view that a court lacks any power to correct the list. Not surprisingly, his statement did not go over well with the panel of judges.

According to the government, procedural due process does not require judicial review in matters of national security. “(R)espect for the government’s conclusions is appropriate,” because the courts lack the competence “in collecting evidence and drawing inferences in” the national security context, Holder v. Humanitarian Law Project, 561 U.S. _, 130 S. Ct. 2705, 2727 (2010). The opaque, administrative remedy of DHS TRIP satisfies due process.

The ACLU sees the situation differently. A person barred from flying is entitled to know the grounds for his inclusion on the list and a meaningful opportunity to rebut the inclusion. If the inclusion is erroneous, the name should be removed. If the person is the victim of a false match, like Asif, the government should affirmatively clear him for flying, not send him an empty letter.

If a person is dissatisfied with the outcome, he must be able to seek redress in court. Procedural due process requires this. A court may show respect for the government’s factual determinations, but the Constitution charges the judiciary, not the executive, with upholding the law.

The fight in Latif has only begun. The government has made a motion for partial summary judgment on the procedural due process claim. Look for the ACLU to push back, hard.
In honor of Asif, here’s hoping the court directs the government make fairer the whole no-fly procedure.


Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or