The Government Is Blacklisting People Based on Predictions of Future Crimes

Imagine: You’ve never been charged with any crime, yet the government blacklists you as a terrorism threat and bans you from flying indefinitely. You’re separated from family members, can’t get to weddings or funerals or religious obligations, and lose jobs because you can’t travel or your employer finds out you’re blacklisted.

You know what the government has done violates your constitutionally protected ability to travel and to be free from false stigma. You have rights — the Constitution guarantees due process. So you ask the government for its reasons and evidence, as well as a live hearing to establish your credibility and innocence. In response, the government says it put you on the No Fly List because it predicts that you might commit a violent terrorism act in the future, but it won’t tell you all the reasons why or give you any evidence or the hearing you seek.

This is the Kafkaesque nightmare in which our clients on the No Fly List have been trapped for eight years. And it’s the unfair system we’re challenging on their behalf in an argument Tuesday before a federal appeals court in Portland, Oregon.

Throughout this long-running case, our clients have sought a fair process in order to clear their names and regain rights most Americans take for granted.

At first, they achieved a major success. In 2014, a federal district court judge struck down as unconstitutional the government’s original procedures for people on the No Fly List to challenge their placement. Under that system, the government wouldn’t even confirm whether people were on the list or not.

“[W]ithout proper notice and an opportunity to be heard, an individual could be doomed to indefinite placement on the No-Fly List,” the court found. “[T]he absence of any meaningful procedures to afford Plaintiffs the opportunity to contest their placement on the No-Fly List violates Plaintiffs’ rights to procedural due process.”

The court ordered reforms. As a result, the government told seven of our clients that they were cleared to fly, but it never told them why they’d been put on the No Fly List in the first place. It also announced in April 2015 that under its revised process, it would tell U.S. citizens and lawful permanent residents whether they are on the No Fly List — and possibly provide reasons. But when the government applied its reforms to our clients still on the list, it became clear just how inadequate the changes were.

The government still refuses to provide meaningful notice of the reasons our clients are blacklisted, the basis for those reasons, and a live hearing before a neutral decision-maker. Much as before, our clients are left to guess at the government’s case and so can’t actually challenge government error.

Through our lawsuit, we’ve also learned that the government is blacklisting people who have never even been charged with wrongdoing based on a prediction that they might someday engage in terrorism. The government eventually revealed that the criteria it uses to ban people from flying are all based on its view that they are a “threat” — a term that the government has never publicly defined and one that encompasses the entire universe of First Amendment-protected speech, association, and conduct that falls short of committing a prohibited crime.

This is unconstitutionally vague, and it invites arbitrary and discriminatory government action. It is perhaps no coincidence that all our clients are Muslim.

We provided the court with expert evidence — which the government never refuted — establishing that government predictions like these guarantee a high risk of error. When the government undertakes such a perilous endeavor, basic due process requires rigorous procedural safeguards.

Nonetheless, in a decision that was unprecedented and unjustified, the district court concluded that the government’s revised process satisfied constitutional requirements.

The court largely rested its incorrect conclusion on a novel ground — that “undue risk to national security” justified the government’s secrecy and deficient process. But no other court has ever permitted blanket assertions of national security risk, untethered to specific justifications that courts then adjudicate, to legitimize a process so flawed.

To the contrary, courts have time-tested means to manage between legitimate government secrecy needs and individual rights. More fundamentally, the Supreme Court has made clear that the “essential constitutional promises” of meaningful notice and an opportunity to be heard “may not be eroded” in cases implicating national security.

Now, on behalf of our clients, we’re asking the Ninth Circuit Court of Appeals to uphold the Constitution’s promise — and its guarantee of fairness.


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Dr. Timothy Leary

The way some dillweeds act when they are on an airliner can you really blame organizations for keeping no fly lists? Recently in the news, some jerk was removed from a flight because of among other things he was doing pull ups on the over head baggage compartment.

Anonymous

A government not fly list is very distinct from a private organization's no fly list. A private airline is free to allow or disallow flights of whomever they choose, so long as the manner in which they do so is not discriminatory.

Anonymous

In this case, the list is held by the government, not by a airline, and not based on the actions of the individual at all. It is arbitrary and a breach of civil rights.

Anonymous

If a local police agency did this to citizens during the Jim Crow era, federal prosecutors would criminally indict those local officials under the Civil Rights Act and criminal statutes like Title 18 US Code 241-245, Title 42 USC 14141, etc. Maybe the real crisis in America today is that there is no real watchdog when federal officials and their contractors violate their own Oath of Office? We need a co-equal branch of government to provide checks & balances.

Jesse Ohlsson

How do I get me and my family onto this list? I’m game.

Anonymous

Probably the easiest way to get on a terrorist blacklist is to write to your Congressman or state legislator and ask them to support green energy, term limits or public financing of election campaigns. It usually takes years or decades to take full affect but you will be blacklisted. Although the First Amendment makes these requests perfectly legal, unknowingly you are in direct competition with highly paid corporate lobbyists. If a corporate lobbyist has been buying legislation - with millions or billions of dollars at stake - a regular citizen exercising their guaranteed First Amendment rights unknowingly becomes the enemy to those lobbyists. After 9/11 the U.S. Department of Justice essentially "deputized" local and state agencies with billions of dollars in unconstitutional "preemption & prevention" grants. Unlike the Jim Crow era and unlike the Red Scare blacklisting, there is no federal DOJ checks & balances on other levels of government. The Judicial Branch is starting to check the Executive Branch DOJ, but after more than 15 years the courts are moving too slow doing their Judicial Review duty.

Anonymous

And if anyone would know about future crimes they're planning to commit, it'd be THAT animal.
You should send over a person for spiritual cleansing after Thing 3 & its family leave the White House. The place will be unlivable without it.

Andrew

I am very much against the policies of Trump, but keep in mind that this policy was started under Obama in 2014.

Anonymous

And if anyone would know about future crimes they're planning to commit, it'd be THAT animal.
You should send over a person for spiritual cleansing after Thing 3 & its family leave the White House. The place will be unlivable without it.

Anonymous

And if anyone would know about future crimes they're planning to commit, it'd be THAT animal.
You should send over a person for spiritual cleansing after Thing 3 & its family leave the White House. The place will be unlivable without it.

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