Liberty and the “No Fly List”

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by | January 29, 2014

Last week, U.S. District Judge Anthony Trenga rejected the government’s summary judgment motion and allowed a Virginia man’s legal challenge to the No Fly List to continue in the Eastern District of Virginia.  The plaintiff believes that he is on the No Fly List, and he is challenging this presumed placement on constitutional and procedural grounds.

Though the No Fly List has been around for years, it remains shrouded in mystery.  As background, Congress prescribes that the TSA shall:

[I]in consultation with other appropriate Federal agencies and air carriers, establish policies and procedures requiring air carriers–(A) to use information from government agencies to identify individuals on passenger lists who may be a threat to civil aviation or national security; and (B) if such an individual is identified, notify appropriate law enforcement agencies, prevent the individual from boarding an aircraft, or take other appropriate action with respect to that individual ….

49 U.S.C. § 114(h)(3).  In 2003, the Attorney General created the Terrorist Screening Center (TSC) to consolidate information from multiple agencies on terrorist activity.  The Terrorist Screening Database (TSDB) was also created to consolidate various government agencies’ watchlists into a single, unified terrorist watchlist.  The TSC places an individual on the TSDB if there is “minimum substantive derogatory material,” which is based on whether there is “reasonable suspicion to believe that a person is a known or suspected terrorist.”

The No Fly list, defined by the Department of Homeland Security (“DHS”) as “a list of individuals who are prohibited from boarding an aircraft,” is a subset of the TSDB.  There is a separate Selectee List that is comprised of individuals who are allowed to fly but must first go through additional screening.  To be placed on either the No Fly List or the Selectee List, an individual must meet “additional derogatory requirements.”

The TSA will not authorize an airline to provide a boarding pass to individuals on the No Fly List.  This information is also shared with many foreign partners, though how effectively it is communicated and enforced abroad is a case-by-case basis.

Many individuals only find out that they may be on the No Fly List once they are denied a boarding pass at the airport.  Neither the airline nor a government agency will confirm or deny that an individual is in fact on the No Fly List.  And if an individual guesses that the No Fly List is the problem, TSC will not identify the derogatory material or suspicion that led to placement on the list.

Instead, the only means of redress is the DHS Traveler Inquiry Program (DHS TRIP) website.  DHS TRIP “routes your redress request to the appropriate office for review and adjudication.”  In short, a rejected passenger submits their contact information and complaint and someone reviews the request.  If the individual was only denied travel because of a similar name to a suspected terrorist, then the problem may be remedied.  Otherwise, a response is sent out some time later that essentially says, “thanks for contacting us.”

The plaintiff in this case is challenging this process on constitutional due process grounds and under the Administrative Procedure Act.  In denying the government’s summary judgment motion, Judge Trenga wrote,

Extended analysis is not required, however, to understand that the No Fly List implicates some of our basic freedoms and liberties as well as the question of whether we will embrace those basic freedoms when it is most difficult….
In effect, placement on the No Fly List is life defining and life restricting across a broad range of constitutionally protected activities and aspirations; and a No Fly List designation transforms a person into a second class citizen, or worse.

“Specifically at issue in this case,” Judge Trenga concluded, “is whether, given the substantial liberty interest in freedom of movement possessed by every citizen, the No Fly List, as applied to American citizens, comports with the requirements of substantive and procedural due process.”  This case will now proceed to discovery. 

As this challenge to the No Fly List develops, the constitutional and liberty interests–including who’s liberty interest should the government restrict, under what context, and through what process–should be of interest, and not just to those that may be on the list.  It brings questions of how the nation should balance liberty with security to the forefront–questions posed since the beginning of the country; not simply new to the post-9/11 era.  And the answers will ultimately apply to all Americans whether in this context or another.