Kashem, et al. v. Barr, et al. - ACLU Challenge to Government No Fly List

In June 2010, we filed a legal challenge on behalf of ten U.S. citizens and permanent residents who could not fly to or from the U.S. or over American airspace because they are on the government’s secretive No Fly List. (An additional three people later joined the suit.) These plaintiffs were never told why they were on the list or given a reasonable opportunity to get off of it. Their inability to fly severely affected their lives, including their ability to be with their families, go to school, and travel for work.

In a victory for our clients, the court ruled in 2014 that the government’s system for challenging placement on the No Fly List was unconstitutional. As a result, the government announced in April 2015 that it would tell U.S. citizens and lawful permanent residents whether they are on the list and possibly offer reasons. However, the government’s new redress process still fell far short of constitutional requirements because it denied our clients meaningful notice, evidence, and a hearing. The district court nevertheless upheld that process.

On behalf of five remaining plaintiffs, the ACLU and the ACLU of Southern California then appealed to the U.S. Court of Appeals for the Ninth Circuit, challenging the constitutionality of the No Fly List criteria as impermissibly vague and the new redress process as failing to provide fundamental due process required by the Fifth Amendment to the Constitution. In October 2019, the Court of Appeals held that the No Fly List criteria were not impermissibly vague and the procedures the government applied to our clients were sufficient. The system still remains fundamentally unfair, and we will continue to seek opportunities to challenge it on behalf of people wrongly placed on the No Fly List and subjected to its harms.

In 2010, several of our ten initial clients were stuck overseas, unable to return to their homes in the United States because they were on the No Fly List. In August 2010, the ACLU petitioned the court for preliminary relief so that the plaintiffs stranded abroad could fly back to the United States. The government eventually let each of these plaintiffs return home, and instituted a repatriation procedure by which U.S. citizens or green-card holders stranded outside of the United States due to apparent inclusion on the No Fly List could secure clearance to fly to the United States on an approved flight. Still, the government refused to tell any of our clients why they had been barred from flying or whether they would be able to fly in the future.

Our lawsuit aims to remedy that failure. The defendants are officials at the Justice Department, the FBI, and the Terrorist Screening Center, which creates and controls the No Fly List. In May 2011, the district court dismissed the case for lack of jurisdiction. The ACLU appealed that decision to the U.S. Court of Appeals for the 9th Circuit, which, in 2012, reversed the district court’s decision and held that the case should go forward in district court.

After extensive briefing, the district court ruled in August 2013 that the Constitution applies when the government bans Americans from air travel. In June 2014, the court struck down the government’s redress process as unconstitutional. It ordered the government to tell our clients why they are on the No Fly List and to give them the opportunity to challenge their inclusion on the list before the court.

In October 2014, the government finally informed seven of the 13 plaintiffs that they were not on the list, and then provided the remaining six plaintiffs with unclassified “summaries” of the reasons for their placement on the list. However, the government still keeps its full reasons secret. It also withholds evidence and exculpatory information from our clients and refuses to give them a live hearing to establish their credibility or cross-examine witnesses. Because of these and other serious problems, the ACLU challenged this revised process as unconstitutional in April 2015.

In response to that challenge, the district court ruled that the government’s revised redress procedures satisfy in principle most due process requirements, and it denied our clients’ individual motions for summary judgment. In April 2017, the district court dismissed our clients’ remaining claims — which directly challenged their continued inclusion on the No Fly List — for lack of jurisdiction.

We appealed those rulings to the U.S. Court of Appeals for the Ninth Circuit, where the panel affirmed the district court’s ruling that the No Fly List criteria are not impermissibly vague and that the procedures provided to our clients were sufficient. The court also affirmed the district court’s dismissal of our clients’ remaining claims on jurisdictional grounds.

Until the government fixes the problems with its revised process, people on the No Fly List are barred from commercial air travel with no meaningful chance to clear their names. Despite the Ninth Circuit ruling, we will continue to challenge a system that is fundamentally unfair.

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