Factsheet: The ACLU's Challenge to the U.S. Government's "No Fly List"
The ACLU and its affiliates in Oregon, Southern California, Northern California, and New Mexico represent 13 Americans, including four military veterans, who were banned from flying because of their inclusion in a secret federal government watch list known as the “No Fly List.”
Between June 2009 and November 2012, each plaintiff was denied boarding on a plane. They are challenging the government’s decision to ban them from flying without providing them a fair process through which they can clear their names.
None of our plaintiffs pose a security threat. None have been given any explanation for inclusion on the No Fly List, or a reasonable opportunity to get off it.
WHAT is the No Fly List?
In 2003, the attorney general established the FBI’s Terrorist Screening Center (TSC) to create and control the government’s watch list of suspected terrorists. Since then, TSC has maintained the Terrorist Screening Database, a consolidated watch list that is used, among other things, to screen passengers at airports. Individuals on the No Fly List, a subset of the larger watch list, are prohibited entirely from boarding flights to and from the United States and over U.S. airspace.
A number of federal agencies nominate individuals for inclusion in the No Fly List. The TSC reviews each nomination against secret criteria to decide whether to add the individual. The government refuses to disclose the No Fly List criteria. People on the No Fly List discover they are on the watch list only when they try to board a plane and are denied.
HOW many people are on the No Fly List?
The No Fly List is secret, so we do not know how many names are on it.
Prior to 2010, the ACLU received few reports from U.S. citizens and green card holders denied boarding on planes. That changed after the TSC dramatically expanded the No Fly List in response to the intelligence failures that permitted Nigerian citizen Umar Farouk Abdulmutallab, the so-called “underwear bomber,” to fly from Amsterdam to Detroit on December 25, 2009.
In a February 2012 article, the Associated Press reported that the No Fly List had “more than doubled in the past year” and had grown to about 21,000 people, including some 500 Americans.
WHO uses the No Fly List?
A number of government agencies use the No Fly List for screening purposes. For example, the Transportation Security Administration (TSA) uses the No Fly List to pre-screen passengers at airports. U.S. Customs and Border Protection uses the No Fly List to pre-screen passengers on ships, which may lead to the denial of passage on ships departing the United States. The U.S. government also shares the No Fly List with 22 foreign governments, which may lead to the denial of boarding even on flights that do not cross U.S. airspace.
HOW do people get their names off the No Fly List?
Currently, there is no meaningful process for a person to get off the No Fly List. An individual denied boarding on a plane due to apparent inclusion in the No Fly List must submit a standard form to the Department of Homeland Security Traveler Redress Inquiry Program (“DHS TRIP”). DHS TRIP transmits complaints to the TSC, which determines whether any action should be taken.
After TSC completes its review, DHS TRIP sends a letter that purports to explain how the complaint was resolved. But that letter does not confirm or deny whether the individual is included on the No Fly List, whether they remain on it, or whether they can fly in the future. The government also refuses to provide any reason for inclusion on the No Fly List or a hearing at which an individual can clear his or her name.
That means individuals on the list must simply hope that an unspecified government agency corrects an error or backtracks. If they are removed from the list, they will only discover this if they take the risk of purchasing airline tickets and trying to fly—without knowing whether they will succeed. This can be a frightening prospect because people on the No Fly List are often surrounded and questioned by numerous security officials when they are denied boarding on planes.
WHAT are the consequences of the U.S. government's No Fly List?
Being unable to fly has had a devastating impact on our clients’ personal and professional lives. It has prevented Air Force veteran Steven Washburn, who lives in New Mexico, from traveling to be with his wife, a Spanish citizen who is located in Ireland and unable to secure a visa to travel to the United States. It prohibited Marine veteran Abe Mashal from traveling to Washington to serve a client of his dog training business, resulting in the loss of a lucrative contract, and from traveling to Hawaii to attend his sister-in-law’s graduation from missionary school. Inclusion in the No Fly List has also prevented Salah Ali Ahmed from traveling to Yemen to visit his siblings and other relatives.
WHAT does Latif v. Holder seek to change?
In Latif v. Holder, the ACLU sued the TSC, FBI, and DOJ for banning the plaintiffs from planes without affording them a fair chance to clear their names.
The lawsuit argues that inclusion on the No Fly List deprives the plaintiffs of their right to travel and injures their reputations by smearing them as suspected terrorists. By causing this harm and failing to provide the plaintiffs notice of the reasons for their inclusion in the list, and a way to confront or rebut any evidence against them, the government violates their Fifth Amendment right to due process.
FBI and DOJ must provide an explanation when someone is denied boarding on planes and seeks to challenge inclusion in the No Fly list. Latif v. Holder seeks a constitutionally adequate redress process for anyone seeking to challenge the denial of boarding due to apparent inclusion in the No Fly List.