Fighting to Clear Their Names: Appeals Arguments Today for No-Fly List Challenge

Today in Portland, Ore., I will be in a federal appeals court asking a three-judge panel to reinstate the ACLU's lawsuit challenging the government's secretive No-Fly List. We represent 15 U.S. citizens and permanent residents, including four military veterans, who are banned from flying to or from the U.S. or over American airspace. They have never been told why they are on the list or given a reasonable opportunity to get off it.

The national ACLU, along with its affiliates in Oregon, Southern California, Northern California and New Mexico, filed the lawsuit in June 2010 against the FBI and its subagency, the Terrorist Screening Center, which creates and controls the list. Last May, the district court in Portland dismissed the case for lack of jurisdiction, ruling that the lawsuit should have been filed against the Transportation Security Administration, which administers the redress process for travelers denied boarding.

Yet, in court filings, the government itself admitted that the Transportation Security Administration plays only a ministerial role, and it is the Terrorist Screening Center that makes the decision to put people on the No-Fly List or remove them. We filed our case against the right agency, and the government's effort to delay a hearing on the constitutionality of this unfair system is wrong.

Being unable to fly has severely affected the plaintiffs' lives, including their ability to be with their families, go to school, and travel for work. Plaintiff Abe Mashal, a U.S. Marine Corps veteran and dog trainer, has lost the business of clients located outside of driving distance from his home in Illinois. He told us: "I have no idea why I'm on the list. I should have the chance to clear my name and live my life normally. This has been a real hardship for me both personally and financially."

It is unconstitutional for the government to put people on secret lists and deny them the right to travel without even basic due process. Without a meaningful way for people to challenge their inclusion on the list, there's also no way to keep innocent people off it.

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The no-fly list is difficult for me. As a hardcore libertarian and civil liberties "extremist", I see how it is a problem. At the same time, I ain't getting on that plane if there's a terror suspect on there, and feel I have a right to know. What do you think is a solution?

Jan van Eck

The implication of the "no-fly list" is that the individuals on that "List" are dangerous to the aircraft itself, and have a propensity for attempting to seize control of it. Considering that aircraft over 12,500 lbs. have the flight-deck doors bolted shut, such person would require a hefty implement, typically a five-foot crowbar, to break in. The TSA is thus conceding that the crowbar would not be picked up during the pre-board screening process, which now includes x-ray scanning, pat-down of the genitals, and other meticulous search protocols.

In the alternative, the TSA seems to concede that its pre-board inspections, currently euphemistically described as energetic, are all a charade and a facade, and cannot remove implements that would allow the passenger the ability to break in to the flight deck, disable an armed multi-man flight crew, and seize control of the machine. Given this concession, the entire pre-board ritual (and the personnel and x-ray machines maintaining that ritual) might as well be scrapped.

And herein we observe the salient feature of modern industrial Government, hysteria style: it degenerates into farce.

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