In June 2010, the ACLU and its affiliates in Oregon, Southern California, Northern California, and New Mexico filed a legal challenge on behalf of 10 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 since joined the suit). The plaintiffs, who include four U.S. military veterans, were never told why they are on the list or given a reasonable opportunity to get off it. Being unable to fly has severely affected their lives, including their ability to be with their families, go to school, and travel for work. In August 2013, the court agreed with the ACLU that constitutional rights are at stake when the government puts Americans on the No Fly List. In the same ruling, the court asked the ACLU and the government to submit additional information about the No Fly List redress procedure to help the court decide whether the process as a whole violates the Fifth Amendment's guarantee of due process. In June 2014, the court ruled the government’s system for challenging inclusion on the No Fly List is unconstitutional. In April 2015, as a result of our lawsuit, the government announced that it would tell people whether they are on the list and possibly offer some reasons. However, the government’s new redress process still falls far short of constitutional requirements because it denies our clients meaningful notice, evidence, and a hearing.
Several of our 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 U.S. The government eventually let each of these plaintiffs return home. It also 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 can secure clearance to fly to the United States on an approved flight. Still, the government refused to tell our clients why they hadn’t been able to fly back in the first place or whether they would be able to fly in the future.
The lawsuit aims to remedy this failure. It was filed against 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, ruling that the lawsuit should have been filed against the Transportation Security Administration, and that the relief the plaintiffs sought could only come from a federal appellate court. The ACLU appealed, and the U.S. Court of Appeals for the 9th Circuit, unanimously reversed the district court’s decision and held that the case should go forward in district court, where it now proceeds.
In a motion for partial summary judgment, the ACLU asked the court to rule that the inadequate redress process for people on the list violates the Constitution’s guarantee of due process. The court partially granted that motion in August 2013, holding that the Constitution applies when the government bans Americans from air travel. Still pending is the court’s decision whether the redress procedures violate the Constitution’s due process guarantee.
In June 2014, the court struck down the redress process as unconstitutional, and it ordered the government to tell the ACLU’s clients why they are on the No Fly List and give them the opportunity to challenge their inclusion on the list before the court.
Until the government comes up with a new process, the No Fly List will consist of thousands of people who have been barred altogether from commercial air travel with no meaningful chance to clear their names, resulting in a vast and growing group of individuals whom the government deems too dangerous to fly but too harmless to arrest.