Court Hears Arguments in ACLU No-Fly Class-Action Lawsuit

November 4, 2004 12:00 am

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ACLU Says Government List is Flawed and Violates Rights of Passengers

SEATTLE-At a hearing here today, the American Civil Liberties Union presented arguments to advance the first nationwide class-action lawsuit challenging the government’s controversial No-Fly lists, which are distributed to all airlines with instructions to detain or interrogate passengers whose names match thousands of names listed.

“As a result of flawed and ineffective No-Fly lists, innocent passengers are being singled out virtually every time they fly and subjected to delays, interrogations and even detentions,” said Reginald T. Shuford, an ACLU senior staff attorney who is lead counsel in the case. “The government’s mismanagement of the No-Fly list not only violates the constitutional rights of the innocent Americans who have no way of clearing themselves from the list, but expending resources to repeatedly detain and interrogate individuals already verified as innocent is counterproductive to national security.”

Today’s hearing came in response to a move by the government to prevent the case from being heard in district court. Attorneys for the Transportation Security Administration and the Department of Homeland Security claim that the district court lacks jurisdiction to review the case. However, the ACLU said that this motion is an attempt by the government to prevent the case from going forward.

“The government is saying that American trial courts have no power to review TSA policies,” said Aaron Caplan of the ACLU of Washington. “The request for dismissal is an attempt to avoid any meaningful judicial review of government practices.”

The ACLU lawsuit, which was filed on April 6, asks the court to declare that the No-Fly lists violate airline passengers’ constitutional rights to freedom from unreasonable search and seizure and to due process of law under the Fourth and Fifth Amendments. The ACLU is also asking the TSA to develop satisfactory procedures that will allow innocent people to fly without being treated as potential terrorists and subjected to humiliation and delays.

The individuals named in the class-action lawsuit are:

  • John Shaw, 75, a retired Presbyterian minister, from Sammamish, Washington;
  • Michelle D. Green, 36, a Master Sergeant in the U.S. Air Force;
  • David Nelson, 35, an attorney from Belleville, Illinois;
  • David C. Fathi, 41, a senior staff attorney with the ACLU National Prison Project in Washington, D.C.;
  • Mohamed Ibrahim, 51, a coordinator for an immigrants’ rights project with the American Friends Service Committee in Philadelphia;
  • Alexandra Hay, 22, a student at Middlebury College in Vermont; and
  • Sarosh Syed, 27, a graduate student at Georgetown University in Washington, DC.

“I joined the ACLU lawsuit because, after making several attempts to have my name removed from the No-Fly list, I was still being repeatedly delayed and detained when I attempted to travel by plane,” said the Rev. Dr. John Shaw, who was most recently stopped at an airport on October 13. “I am a law-abiding citizen and a retired member of the clergy. It is truly a humiliating experience for me and my family to be flagged by security personnel as a terrorist threat in front of other passengers.”

Many passengers on the No-Fly lists have expressed concern that they may have been singled out because of their ethnicity, religion or political activity. Their concern is heightened by the fact that the lists appear to have been shared widely among U.S. law enforcement agencies, internationally and with the U.S. military.

In response to a separate lawsuit filed by the ACLU of Northern California, the Justice Department last month released 300 pages of documents related to the No-Fly lists. The documents indicate that the lists were implemented and enforced long before there was a coordinated policy in place. The documents reflect, among other things, confusion, inter-agency squabbling and subjective criteria in placing thousands of names on the list.

The No-Fly lists received intense media scrutiny in recent months after Senator Edward Kennedy (D-MA), Congressman John Lewis (D-GA), and Congressman Don Young (R-AK), all reported being stopped at airports. The lawmakers say they were told by security personnel that their names appeared on FBI lists.

In addition to Shuford and Caplan, attorneys in the case are Catherine Kim of the national ACLU and cooperating attorney Michael E. Kipling of the Summit Law Group in Seattle.

A special web feature on the “No-Fly” legal challenges, including copies of legal briefs and government documents, is available online at

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