Recent Challenges to the No-Fly List

Posted in Civil Rights on May 2, 2014

The U.S. Department of Justice recently announced that it will not appeal the January 2014 ruling of U.S. District Judge William Alsup, that the placement of Rahinah Ibrahim on the no-fly list violated due process.  In that case, Judge Alsup held that the existing redress procedure, the Department of Homeland Security Traveler Redress Inquiry Program (“TRIP”) does not provide adequate due process protections, and ordered DHS to remove Ms. Ibrahim from the no-fly list.  Just this week, the CLEAR project (Creating Law Enforcement Accountability & Responsibility), the Center for Constitutional Rights, and Debevoise & Plimpton LLP, filed a federal lawsuit in the Southern District of New York on behalf of four plaintiffs, alleging that the FBI used the no-fly list to pressure them to become informants.  The FBI told some plaintiffs that they would place them on the no-fly list unless they became informants, and told others that they could not get off the list unless they cooperated.

Over the past decade, many individuals, particularly from the Middle Eastern, Muslim, and South Asian communities in the United States, have faced increasing scrutiny at the airport.  While the TRIP process provided some relief to individuals traveling domestically, many individuals still have to undergo secondary screening when they return from traveling abroad.  For a number of individuals—those individuals the U.S. government has placed on the no-fly list—they cannot travel at all.

Barred from Travel

In 2005, Stanford University Ph.D. student Rahinah Ibrahim, a Ph.D. student at Stanford University, was detained at SFO and mistakenly told that she was on the no-fly list.  Ms. Ibrahim first came to the United States to study architecture at the University of Washington.  After she received her master in architecture, she returned to Malaysia and became the first female lecturer at Universiti Putra Malaysia.  In 2000, she returned on an F-1 student visa and to work towards her Ph.D. in construction engineering and management at Stanford.

In January 2005, Ms. Ibrahim planned to travel from San Francisco to Hawaii to attend a conference sponsored by Stanford and eventually travel to Malaysia.  At the time, Ms. Ibrahim was recovering from a hysterectomy and needed wheelchair assistance.  While at the airline counter, however, the airline staff called the police, who handcuffed her and placed her in holding cell.  The DHS Aviation Security Inspector eventually released her, stating that her name was removed from the no-fly list and the police found there were no grounds for a criminal complaint.  They told her she could travel the next day.  The following day, Ms. Ibrahim returned to the airport to fly to her conference but was given a red boarding pass marked “SSSS,” for Secondary Security Screening Selection.

Two months later, in March 2005, Ms. Ibrahim planned to meet with thesis advisor at Stanford, but she was not permitted to board her flight.   She was told her F-1 student visa was revoked, and she has not been allowed to travel to the U.S. since.

After years of litigation and appeals, it was not until the deposition of the FBI agent who placed Ms. Ibrahim on the list that he realized he made a mistake.  He checked the wrong box.

As Judge Alsup noted, “At long last, the government has conceded that plaintiff poses no threat to air safety or national security and should never have been placed on the no-fly list. She got there by human error within the FBI… That it was human error may seem hard to accept – the FBI agent filled out the nomination form in a way exactly opposite from the instructions on the form, a bureaucratic analogy to a surgeon amputating the wrong digit.”

In his opinion, Judge Alsup outlined the various lists administered by the FBI and discussed how individuals do not receive notice of their placement on the list.  He described how once an individual is placed on the list it is “like a bad credit report that will never go away.”

Remedies

Additionally, Judge Alsup ruled that Ms. Ibrahim was entitled to a post-deprivation remedy.  The court held that the current DHS TRIP process, which did provide a measure of post-deprivation relief, was inadequate, and thus the government had to remove her name from all of the government databases.   Finally, despite the government’s concerns regarding making the order public, Judge Alsup noted that much of the data regarding these lists are publicly available.  For example, a 2006 Government Accountability Office report revealed that between December 2003 and January 2006, half of the tens of thousands of potential matches sent to the database that monitors the lists were misidentifications.

What will happen to the thousands of individuals still wrongfully on these lists?  As Judge Alsup stated in a footnote, the Ibrahim case rested on a conceded mistake, and thus “harder no-fly cases surely exist.”  He suggested the possibility that individuals may be entitled to a summary of the reasons for their placement on the no-fly list.  The recently filed case in the Southern District of New York may present that possibility.  Given these cases and the likelihood of future litigation, the government likely will have to make significant changes to its placement and removal of individuals on the no-fly list.