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PORTLAND, Ore. – The American Civil Liberties Union will be in federal court tomorrow asking a judge to declare unconstitutional the government's practice of banning people from flying without giving them any notice, reasons, or meaningful way to clear their names.
"We're asking the court to finally put a check on the government's use of a blacklist that denies Americans the ability to fly without giving them the explanation or fair hearing that the Constitution requires. It's a question of basic fairness," said ACLU Staff Attorney Nusrat Choudhury, one of the ACLU attorneys who will argue the case Friday in Portland. "It does not make our country safer to ban people from flying without giving them an after-the-fact redress process that allows them to correct the errors that led to their mistaken inclusion on the list."
The national ACLU, along with its affiliates in Oregon, Southern California, Northern California, and New Mexico, filed the lawsuit in June 2010. It represents 13 U.S. citizens, including four military veterans, who are on the No Fly List and banned from flying to or from the U.S. or over American airspace. In a July 2012 decision, the 9th Circuit Appeals Court reversed the district court's dismissal of the case on jurisdictional grounds, and now the district court is considering the case on its merits.
"Americans have a right to know what kind of evidence or innuendo will land them on the No Fly List, and to have a hearing where they can defend themselves. Without this bare minimum, there is no meaningful check to correct the government's mistakes or ensure that it uses this blacklist fairly," Choudhury said.
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, and he was unable to travel to Hawaii for his sister-in-law's graduation.
"Putting me on a blacklist without telling me why or giving me a chance to clear my name is fundamentally unfair," Mashal said. "I've done nothing wrong, yet the government is putting me through great personal and financial hardship."
According to media reports, there are more than 20,000 people on the No Fly List. Their only recourse is to file a request with the Department of Homeland Security's "Traveler Redress Inquiry Program," after which DHS responds with a letter that does not explain why they were denied boarding. The letter does not confirm or deny whether their names remain on the No Fly List, and does not indicate whether they can fly. The only way for a person to find out if his or her name was removed from the No Fly List is to buy a plane ticket, go to the airport, see if he or she can get on the flight – taking the risk of being denied boarding and marked as a suspected terrorist, and losing the cost of the airline ticket.
The ACLU argues that this system violates the Fifth Amendment's command that the government cannot deprive a person of liberty "without due process of law." Courts have ruled that the Constitution requires some kind of notice and hearing for far less severe actions, such as losing state assistance for utility bills or being suspended from school for 10 days.
In addition to Choudhury, attorneys on the case are Hina Shamsi of the national ACLU; the ACLU of Southern California's Ahilan Arulanantham, who will also argue in court Friday, and Jennie Pasquarella; Kevin Díaz and cooperating attorney Steven Wilker of the ACLU of Oregon; Alan Schlosser and Julia Harumi Mass of the ACLU of Northern California; Laura Ives of the ACLU of New Mexico; and Akin Gump Strauss Hauer & Feld LLP.