As Steve has already noted, the District Court of Oregon yesterday, in Latif v. Holder, issued a “Very Big Deal” opinion ruling that the No Fly List redress procedures violated defendants’ procedural due process. In what follows, I will explain why it is such a big deal, some key noteworthy aspects, and its limits.
In a nutshell (and as also ably described by Jeff Kahn over at Lawfare), the opinion effectively calls the government to task – concluding that the government can no longer shroud the No Fly List in near-total secrecy. Contrary to current practice, citizens and legal permanent residents turned away from their paid-for flights, at least according to Judge Anna J. Brown, be informed of the fact of – and reasons for – their placement on the No Fly List. Due process requires it. In other words, even in a case such as this – where the government’s interest is of “the highest order”– some form of adversarial, post-deprivation review is required.
In so ruling, the court breaks new ground. While a district court in California recently ruled that the government must inform Ms. Rahinah Ibrahim that she is no longer on the No Fly List, this is the first time that a court has required the government to tell anyone that they are on the No Fly List and the reasons why. (For more background on about how the No Fly List, see these earlier posts here and here.) The ruling is particularly thoughtful and thorough, and definitely worth a read. As described below, it exemplifies precisely the type of judicial reasoning that I have advocated here.
The Latif plaintiffs are 13 citizens and legal permanent residents – all of whom were prohibited from boarding paid-for flights. Several were stranded overseas as a result, only allowed to fly home after they filed this lawsuit and granted a “one-time waiver” allowing their return; others missed funerals, weddings, or planned visits with children living abroad. In June 2010, they filed a lawsuit, claiming, among other things, a violation of their procedural due process rights.
Last August, the court issued a preliminary ruling, finding that – contrary to the government’s position – there is a protected liberty interest in international travel and that this interest was infringed upon by plaintiff’s alleged placement on the No Fly List. It concluded, however, that it could not accurately assess the risk of erroneous deprivation and probative value, if any, of additional procedural safeguards (prong #2 of the Mathews v. Eldridge balancing test) without first learning more about an alternative Court of Appeals review process. It thus deferred a final ruling on the merits.
The ruling came yesterday. As the court correctly concluded, the alternative appellate review process hardly constitutes adequate process. Even once the case reaches the appellate court stage, would-be travelers are not told whether or not they are on the no fly list, let alone the factual or legal basis for their placement. Rather, the Court of appeals reviews, ex parte, the record compiled by the government; petitioners are provided only the portion of the record that they themselves have submitted. As Judge Brown put it, the Court of Appeals review “is of the same one-sided and potentially insufficient administrative record” relied upon in the initial listing decision without any meaningful opportunity to intelligently submit evidence that would correct errors in the record.
Moreover, the risk of error is compounded by the low evidentiary standard for placement on the underlying database in the first place. The standard is reasonable suspicion, and, as we learned from the Ibrahim case, even the reasonable suspicion standard can be waived if too rigorous to achieve the desired results in a particular case. As the court concluded, this “combination of a one-sided record and a low evidentiary standard” is a “fundamental flaw.” Thus, even while recognizing the government’s “particularly compelling” interest in combating terrorism and protecting classified information, it concluded that the due process balancing came out on the side of the plaintiffs. They are entitled to notice as to their placement on the list, information about the basis for their placement, and some sort of meaningful opportunity to respond.
Pre vs. Post-Deprivation Review
Key to the case is the fact that it involves post-deprivation review. There are, no doubt, very good operational reasons to deny persons advance notice that they are – or are not – on the No Fly List and thus alert them whether they can be the one to smuggle the explosives on a plane. But the calculus changes once an individual has shown up at the airport with a ticket in hand and told that he or she can’t get board the flight. At that point the person knows, or at least has a strong inkling, that he or she is on the No Fly List. Moreover, whereas previously just a name on a list, he has, once actually denied boarding, suffered an affirmative deprivation of liberty. If ongoing, there ought to be, as the court concluded, an opportunity to meaningfully challenge this deprivation, particularly given the history (exemplified by the Ibrahim case) of error.
This distinction between pre- and post-deprivation remedy is also central to the ongoing debate about due process, drones, and the targeting of U.S. citizens. As as Steve and others have argued, even if there is no right to an independent pre-deprivation review (given, among other things, the operational concerns), there ought to be some sort of independent, after-the-fact, post-deprivation review of targeted killings of U.S. citizens. Due process appears to require it. Judge Brown’s opinion provides yet another quiver in the argument for post-deprivation review.
An Exemplary Ruling
Above and beyond the specifics of this particular case, the opinion also provides an example of precisely the type of searching inquiry and analysis that courts ought to engage in when addressing preventive restraints of the type imposed by the No Fly List. As I have described elsewhere, the No Fly List is the kind of preventive restraints that often fall under the radar screen. Because they are deemed preventive, not punitive, they are not subject to the array of procedural protections that apply when the state seeks to criminally punish. And because they are non-custodial (i.e., the target is not placed beyond bars), they are generally assumed to implicate negligible liberty interests at best. But, as I previously argued, this assumption is wrong; courts should engage in a “searching inquiry and analysis” of the liberty interests at stake, and recalibrate the procedural due process balance accordingly.
Judge Brown has engaged in precisely the type of searching inquiry and analysis I advocated – looking not just to the narrow question as to whether there is right to travel by airplane, but at the way a bar on air travel impacts a broad range of liberty interess. As the court summed it up,
Plaintiffs have suffered significantly including long-term separation from spouses and children; the inability to access desired medical and prenatal care; the inability to pursue an education of their choosing; the inability to participate in important religious rites; loss of employment opportunities; loss of government entitlements; the inability to visit family; and the inability to attend important personal and family events such as graduations, weddings, and funerals. The Court concludes international travel is not a mere convenience or luxury in this modern world. Indeed, for many international travel is a necessary aspect of liberties sacred to members of a free society.
Her nuanced analysis and recognition of the liberty interests at stake then tipped the scales in the Mathews v. Eldridge balancing test. It made clear the costs of error and importance of additional procedural safeguards, even in light of the government’s compelling interest in combating terrorism and protecting aviation security.
While clearly a big deal, it’s also worth remembering that the ruling presumably applies to U.S. citizens, legal permanent residents, and other non-citizens with substantial voluntary connections to the U.S. only. After all, the ruling is premised on the due process clause, and, according to current doctrine, the due process clause does not protect non-citizens abroad (unless they happen to have substantial voluntary connections to the United States). Given that, at least as of February 2012, there were reportedly over 21,000 persons whose name is on the No Fly List, only 500 of whom were reportedly U.S. citizens, my guess is that the vast majority of those on the No Fly List will derive no additional protections from this ruling.
These individuals can still be permanently barred from flying over U.S. airspace, without ever being told whether or why they are subject to the No Fly List; meanwhile, as Judge Brown noted, No Fly List information is shared with 22 foreign governments, many of whom are likely to impose their own set of restraints – the source of which may or may not be traced back to the U.S.’s No Fly List. What process ought (or ought not) be provided such individuals is not an easy question. But in any event, it is not one that is answered here.
The court, acting with typical care, does not impose a specific remedy on the government. Rather, it tells the government to go back to the drawing board and itself fashion the procedures that will satisfy its ruling – namely, procedures that provide plaintiff notice of their status on the No Fly List and sufficient information about the reasons of such placement to allow them to meaningfully respond. How it does so is left up to the Defendants. The government could, for example, provide an unclassified summary of the record; it could provide cleared counsel access to the record; or it could do some combination of both (along with any other adequate procedure they come up with). And while the court concedes that there may be some situations where disclosures may be limited or even withheld, it concludes that this determination must be made on a case-by-case basis, based on, at a minimum, consideration of the nature and extent of the classified information, the threat posed, and the availability of alternative avenues allowing for a meaningful challenge to the record.
The government has until July 14, when it is next due to file a status report with the court, to at least come up with an outline of a plan. It will no doubt be interesting – and informative – to watch how they respond.