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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Anonymous

One of America's greatest U.S. Supreme Court justices - Louis Brandeis - originated the famous quote "Sunlight is the best disinfectant". Brandeis was referring to the danger to regular Americans of excessive secrecy by government. Essentially he meant that the voters can't self-govern in a constitutional democratic republic if the voters - the governors of the government - are kept in the dark. Brandeis also knew how evil blacklisting was, the person targeted can never confront their accusers as the "supreme law of the land" legally mandates. Decades later, Congress enacted the Freedom of Information Act (FOIA). Every year FOIA has a "sunshine week" based on Brandeis' warning of excessive secrecy. The question for voters today is do we want an American government or a Cold War era style "Stasi" (secret police)? There is absolutely nothing more UnAmerican than blacklisting.

Anonymous

Unless its blacks that are being listed then its American all the way! This law is directed mostly at Muslims & people of color, who else? Plus Trump supporters alway love to throw Obama under the bus. But less be realistic Obama was nothing more than a puppet put in office to do exactly what he was told to. Please he was condemn for being racist & not one statement or action prove this. Otherwise he would've been impeached if he even attempted to do a small percentage of the crap Trump gets away with on a daily basis.

Anonymous

The No-Fly list is also difficult for people who share names with those on the list. Remember the terrorist, Kevin James. Anyone else with that common name combination gets to spend forever trying to prove they're not the same as the person on that list.

Anonymous

Speaking of due process. Kavanaugh?

Anonymous

Kavanaugh is subject to investigation by the 10th circuit. Due process would have included all those documents from the Bush years.
Oh, and did you whine over due process when Merrick Garland did not get a single hearing?

Michael

This is the same “logic” that led to the detention of Americans of Japanese descent: Guilty until proven innocent.

James Lewis Tyree II

I’m so glad that you are fighting for all of our rights and this is completely unacceptable and despicable

Norman Ladner A...

It is odd that in this country people known to have violent criminal and mental problems can buy killing machines . Yet people with no violent criminal records or mental problems can't get on a plane .

Anonymous

I would see if I could sue the politicians who passed that bill.

Anonymous

There are Christians on the no-fly list. Why aren't you representing them?

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