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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Rumplestiltskin

sounds like youre guilty of whataboutism. Are you familiar with the ACLU at all?

Anonymous

Talking about the 9th circuit upholding the constitution?? ROFLMAO! The left is COMMUNIST and the 9th circuit is their freakin' posterchild!

Anonypuss

See: Minority Report

Anonymous

And while they're focusing on innocent, law abiding Muslims, Billy Bob gets away with flying across the country with the intent on bringing violence to a peaceful protest, or shoot up another school. This country's worries are so bass ackwards that they let the real criminals -- domestic terrorists -- get away with flying freely anywhere in this country. There are more DOMESTIC terrorists than there are foreign terrorists, or Muslims just trying to EXIST in a society that believes that being white and Christian is right. The sad part is that folks don't realize that their neighbor might also be a Muslim. But that is unthinkable to many because their neighbor is white; most white folks are Christians, and wouldn't believe their white neighbor would be Muslim because they may not wear the traditional clothing or speak the language outside of their home. So those whites automatically feel comfortable enough to talk to that white Muslim neighbor about their racism.

Lev Lafayette

You may recall a certain science fiction author, Phillip K Dick, writing a horrific short-story when people are arrested on the basis of precognition of future crimes. Became quite a well-known movie; "Minority Report".

Anonymous

I support the ACLU, but I have two questions, what would be a better way to keep dangerous people off of planes?
And....
What is the crime rate of people after the ACLU helps them? I mean really bad crimes, not just using or selling some drugs.

Anonymous

This is a frustrating article to read, because it's short on factual recitation and long on alarmist theorizing. As much as I'm inclined to buy the premise, the story falls into a style and format so similar to right-wing trollish rhetoric that I find it unconvincing. Step back, regroup, and try it again - only this time, back it up with verifiable evidence.

Lyn

This is horrible. There was a Tom Cruise movie called “The Minority Report” that was a futuristic look at what would happen in a society where people were reduced to 0 and 1’s and thought to be at risk of committing crimes. This is what we’re doing. It’s not only unfair. It’s just awful. I can’t believe this went on during the Obama administration. It saddens me. It is pure Dick Cheney. Preemptive war, incarceration for what you might do, harassment for being Muslim, etc. This is just plain wrong!

Paul

Israel's airlines have been profiling travelers for years. They have the lowest incident ratings of all airlines. When I am traveling, I'll gladly give up a small portion of my civil liberties to travel safely.

Wouldn't you?

Anonymous

Nope. To quote good old Ben F, "Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety."

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