Counterterrorism Under the Radar: A Notable No Fly List Case and its Broader Implications

Amidst all the discussion of the President’s speech on surveillance (and the PCLOB Report on the same subject), the release of Robert Gates’ memoir, and the discovery of horrific war crimes in Syria, it is hardly surprising that few have noticed a district court’s obscure ruling in a nine-year battle over the No Fly List.  (Hats off to Jeffrey Kahn over at Lawfare for being one of those few.)   But, for a host of reasons, the decision is worth studying.

In Ibrahim v. United States, the government lost the first-ever challenge to the No Fly List that has been decided on the merits.  While the full opinion is sealed until April 15 at the government’s request (giving the government time to appeal the district court’s desire to make it public), this much is clear from Judge Alsup’s summary public order (1) the government now concedes that the plaintiff, Ms. Rahinah Ibrahim, is not a threat to national security; (2) the court found that the government erred in placing her on a terrorism watchlist; and (3) most notably, the government is now required to inform the plaintiff of her No Fly List status—something it has never done before in the eight years of litigation in this case or in any other case (an issue I discuss in much more depth in this newly-published article in the Cornell Law Review).   In what follows, I describe the most notable aspects of the ruling, and offer suggestions about where we should go from here.

Background and Significance

The No Fly List is one of those government programs that most people don’t even believe is true when they first learn about it.  Here’s how it works:  The Transportation Screening Center maintains a list of persons on the No Fly List, presumptively for purposes of protecting aviation security.   The list is secret – and for good reason: After all, as the government points out, it would tip off would-be terrorists if they were able to determine which of their brethren could and could not safely get on a plane (and thereby smuggle that dangerous biological agent abroad).

But the basic list is not the only thing that is kept secret.  The standards for being put on the list are also secret.  Moreover, even after someone goes to the airport with ticket in hand and is been turned away at the gate (and thereby tipped off that at least something is up), he is still not told whether or not he is on the list—or why.  Instead, the would-be traveler is told to file a complaint with the Department of Homeland Security (DHS); at the end of the process, DHS issues a letter stating that the administrative review is complete, but without confirming or denying placement on the list.  Individuals are then told that they can appeal the decision to the respective Court of Appeals — in other words, they can seek review of an unknown decision based on an unknown set of facts and an unknown set of criteria.  As of February 2012, reports suggested that there were 21,000 people on the list, including approximately 500 U.S. citizens (although even this cannot be confirmed; the size of the list is, you guessed it, a secret as well).

Meanwhile, there does not appear to be any time limit as to how long persons can stay on the list; thus, even if such a list could be justified as a stop-gap measure to protect against emergent threats, it seems hard to justify such a restriction months or years later if no criminal case can be brought or deportation order initiated.

But because of complicated jurisdictional issues (with cases bouncing back and forth between the district court and Courts of Appeals) coupled with the government’s insistence on the security harms to follow from disclosure, no court had ordered that an individual’s No Fly List status be made known before Judge Alsup, or that a specific No Fly List determination was erroneous.   That said, at least one other district court appears poised to follow Judge Alsup’s lead.

Related Litigation

In another case worth watching, 13 citizens and lawful permanent residents are challenging their alleged placement on the list.   In August, a district court in Oregon ruled that their alleged placement on the No Fly List interfered with the constitutionally protected liberty interest in travel, and expressed grave concern over the government’s failure to provide notice as to the fact of, let alone basis for, placement on the No Fly List.  It, nevertheless deferred a final ruling on the underlying procedural due process claim until it could learn more about the alternative Court of Appeals review process.  Thanks to a joint stipulation of facts, we now know more:

The government does not, at any point during the [Circuit Court] judicial review process, provide the petitioner with confirmation of whether he or she is on the No Fly List, the government’s reasons for including the petitioner’s name on the list, or any information or evidence relied upon to maintain the petitioner’s name on the list.

In other words, the notice problems are not cured through the alternative means of circuit court review.  The ruling in Ibrahim’s case should thus give cover to the Oregon district court to rule as its August Order suggested it was already inclined to do—to demand something in the way of notice as to the fact of and basis for placement on the List.

The Elephant in the Room: Constitutional Rights of Aliens Abroad

One of the reasons why it has taken so long to reach the merits of Ibrahim’s case is because the government argued that Ibrahim had no due process (or other constitutional) rights to enforce given that, at the time of her lawsuit, she was a non-citizen residing outside the territorial United States.   The relevant facts: Ibrahim had been a graduate student at Stanford for four years.  In 2005, she (along with her daughter) attempted to board a plane to go to Malaysia, but was told that she was on the No Fly List and not only turned away, but temporarily detained.  The next day she was allowed to leave, but has since been prohibited from getting on a plane to return (and has also had her visa revoked).

The government argued that because she voluntarily left the United States she forfeited her constitutional rights. The Ninth Circuit rightly rejected that cramped understanding of the Constitution’s reach, and instead held that she was entitled to constitutional rights protections given her “significant” and “voluntary” connections with the United States, even after she crossed the border. It was that decision, handed down in February 2012, that paved the way for Judge Alsup’s ruling.  While the Ninth Circuit’s holding was, in my view, the correct one – and one that I hope and expect other circuits will adopt as well—the negative implications are equally troubling: that if Ibrahim had spent only six months rather than four years here, her case may very well have come out differently.

* * *

To be clear, I know nothing about the threat that Ibrahim does—or does not—pose.   Perhaps she posed the kind of threat to keep her off a plane in 2005 and perhaps she will pose that kind of threat in the future.  If she does, the U.S. government may very well have good reason to keep her off the plane.   And in certain circumstances, it should be able to do so.

Rather, I make three fairly simple claims:

First, the public should know, and be permitted to debate, criteria (as distinct from reasons) for placing an individual on the No Fly List.  While this and other preventive restrictions on our liberty might be justified as a stop-gap measure, they should be narrowly tailored to satisfy a pressing need—and not relied upon as an expedient alternative to incapacitation through trial and prosecution, or as a long-term means of managing perceived risk.

Second, once an individual has shown up at the airport with ticket in hand, and been prohibited from getting on a plane, the government should acknowledge the obvious: that the target is on a No Fly List.  It should then, at a minimum, provide a basic summary of the reasons for inclusion.

Third, as the Ninth Circuit correctly concluded, this should not be deemed optional—but required under the Fifth Amendment’s Due Process Clause, at least for any citizen and alien who is either present in the United States or has developed significant voluntary connections with our nation.

Needless to say, we’re still in the middle of this story, not the end. But for all of the attention paid on this blog and elsewhere to Guantánamo, surveillance, and targeted killing, it’s also worth paying attention to cases like Ibrahim, and the less visible—but equally controversial—ways in which the government conducts counterterrorism policy through much more ordinary civil, administrative controls. 

About the Author(s)

Jennifer Daskal

Associate Professor at American University Washington College of Law Follow her on Twitter (@jendaskal).