The No-Fly List: The New Redress Procedures, Criminal Treatment, and the Blanket of “National Security”
Washington and Lee Journal of Civil Rights and Social Justice
The No-Fly List: The New Redress Procedures, Criminal Treatment, and the Blanket of “National Security ”
Chelsea Creta 0 1 2
0 Thi s Note is brought to you for free and open access by the Washington and Lee Journal of Civil Rights and Social Justice at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Journal of Civil Rights and Social Justice by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information , please contact , USA
1 Chelsea Creta, The No-Fly List: The New Redress Procedures, Criminal Treatment, and the Blanket of “National Security”, 23 Wash. & Lee J. Civ. Rts. & Soc. Just. 233 (2016). Available at:
2 Washington and Lee University School of Law , USA
Part of the Civil Rights and Discrimination Commons; and the Human Rights Law Commons
The No-Fly List: The New Redress Procedures,
Criminal Treatment, and the Blanket of
I. Introduction .....................................................................234
∗ Candidate for J.D., May, 2017. I would like to thank Professor Margaret
Hu for acting as my faculty advisor on this Note and for her help and guidance. I
would also like to thank Judge Anthony J. Trenga for giving me the opportunity
to intern for him and research the state secrets doctrine, which inspired the topic
of this note.
Implicit in the term “national defense” is the notion of defending
those values and ideals which set this Nation apart. For almost
two centuries, our country has taken singular pride in the
democratic ideals enshrined in its Constitution. . . . It would
indeed be ironic if, in the name of national defense, we would
sanction the subversion of one of those liberties . . . which make
the defense of the Nation worthwhile.
-Chief Justice Warren in United States v. Robel1
On September 11, 2001, the school day was interrupted when
mothers and fathers suddenly arrived at Long Island schools to
pick up their children. Parents pulled their unknowing children
out of these schools—schools within a quick driving distance to
Manhattan, New York—for reasons only communicated on the
carride home. I was one of these unknowing fourth graders who found
out what happened upon arriving home.
News programs covered the tragedy: two planes hit the North
and South Towers of the World Trade Center, one plane crashed
into the Pentagon, and the other failed in its attempt at
Washington, D.C., instead crashing into a Pennsylvania field.2
Newscasters reported that “[nineteen] militants associated with
the Islamic extremist group al-Qaeda hijacked four airliners and
carried out suicide attacks against . . . the United States.”3 “Over
3,000 people were killed during the attacks . . . including more
than 400 police officers and firefighters.”4
Most of us can recall where we were or what we were doing
when severe tragedy struck. The September 11 terrorist attacks
(9/11) introduce this Note because they caused a whirlwind of
legislation and executive action that formulated one of the most
controversial lists in modern times: The No-Fly List.5
Before the 9/11 attacks, the United States federal government
maintained a list of sixteen people deemed “no transport” because
they presented a specific known or suspected threat to aviation.6
As a result of 9/11, the Homeland Security Act of 2002 created the
Department of Homeland Security and the Aviation and
Transportation Security Act of 2001 made the federal government
responsible for airport security.7 After tragedy hit, the “Selectee”
and “No-Fly” lists were created in mid-December 2001 and grew in
size.8 The Selectee List calls for additional security and enhanced
screening without flight prohibition.9 The No-Fly List prevents
boarding of persons known or suspected as threats to aviation.10
11-attacks (last visited Oct. 1, 2016)
(introducing the timeline of events of
September 11, 2001)
(on file with the Washington and Lee Journal of Civil Rights
and Social Justice).
4. See id.
(stating that “September 11, 2001 was the deadliest day in history
for New York City firefighters: 343 were killed.”)
5. See Terrorist Screening Center: Frequently Asked Questions, FED.
BUREAU OF INTELLIGENCE (Apr. 11, 2016),
(stating that “[t]he Terrorist Screening Center was established in 2003, pursuant
to Presidential Directive by the Attorney General and is administered by the
[FBI]” and that “[t]he No-Fly List is a subset of the Terrorist Screening Database”)
(on file with the Washington and Lee Journal of Civil Rights and Social Justice).
6. See Transp. Sec. Intelligence Serv., Attachment A- Part 1: TSA Watch
Lists, U.S. DEP’T OF TRANSP. 2 (2002),
(presenting a classified and unclassified portrayal of information regarding the
TSA Fly Lists) (on file with the Washington and Lee Journal of Civil Rights and
7. See id. at 2–3
(expressing that the Federal Aviation Administration
assumed responsibility for the FBI Pentborn List in November 2001 and then that
the Terrorist Screening Center created and maintained the No-Fly List)
8. Id. at 3.
9. See id. at 3, 16 (describing the criteria for placement on the Selectee List
in classified redaction, but describing that the Selectee List calls for additional
10. See id. at 4 (describing the criteria for placement on the No-Fly List).
Answers to questions concerning the No-Fly List hide
behind a veil: The United States has disclosed limited amounts
of information regarding No-Fly List placement criteria and
redress intelligence.11 The classified nature of the intelligence
utilized to fulfill the limited amount of unclassified criteria for
placement on a terrorist watchlist therefore makes it extremely
difficult for individuals to challenge their inclusion.12 Professor
Margaret Hu explained that “the nomination and
determination process has been criticized for its . . . . lack of
any minimum qualitative guideline or quantitative baseline for
investigatory or evidentiary standards.”13 These criticisms
remain pressing issues today as the List continues to grow in
The sixteen-person List no longer exists. A 2007
Department of Justice (DOJ) report estimated that the No-Fly
List “contained over 700,000 names and . . . was ‘increasing by
an average of more than 20,000 records each month.’”14 A 2012
Government Accountability Office (GAO) report noted an
increase in individuals denied boarding or selected for
screening, but did not report any data on the specific amount
when, at the time, the Federal Bureau of Investigation (FBI)
reported approximately 550,000 names on the No-Fly List.15
The exact number of names on the list remains unknown.16
The second section of this Note will discuss the Department of
Homeland Security’s Traveler Redress Program and the redress
procedures in place before courts began to deem those procedures
unconstitutional.17 It will also discuss the initial judicial treatment
of No-Fly List cases and judges’ tendency to dismiss on
The third section will analyze the evolution of judicial views
toward No-Fly List cases.19 This section concludes that courts
around the country began interpreting the No-Fly List’s
jurisdictional statute differently to accept No-Fly List cases into
district court dockets. Eventually, this allowed district courts to
analyze the government’s redress procedures available to United
States citizens and to find them unconstitutional in violation of due
process.20 This section focuses on how courts wanted to begin
interpreting No-Fly List legal questions because of a changing
attitude toward national security developing over a number of
years since 9/11, an attitude evolving to this day.21
The fourth section of this Note discusses the government’s
“state secrets” privilege, and how the privilege is used to prevent
litigation of No-Fly List cases as a response to recent judicial
rejection of lack of jurisdiction claims.22 This section will analyze
the No Fly List”) (on file with the Washington and Lee Journal of Civil Rights and
17. See infra Part II. The Department of Homeland Security’s Traveler
Redress Program (DHS TRIP), the Old Procedures, and Judicial Dismissal
(discussing the old redress procedures and the little information given those
seeking redress about their case).
18. See infra Part II (explaining how judicial interpretation of statute
prevented district courts from hearing No Fly List cases).
See infra Part III. The District Courts Gain Jurisdiction and the
New Redress Procedures Are Created (transitioning from a discussion on the
dismissal of No Fly List cases based on lack of jurisdiction and into a discussion
on changing judicial statutory interpretation).
20. See infra Part III (analyzing how statutory interpretation by the courts
allowed citizens to find legal avenues in the district courts, not solely through the
United States Court of Appeals).
21. See infra Part III (realizing this attitude appeared first in Ibrahim v.
Dep’t of Homeland Sec., 538 F.3d 1250 (9th Cir. 2008), which held that the district
court was not divested of subject matter jurisdiction over alien’s claim for
injunction directing removal of her name from the No-Fly List).
22. See infra Part IV. The “National Security” Blanket
(discussing the state
secrets privilege in further detail, which prevents disclosure of information in a
legal case because the government states that court proceedings would disclose
the 2015 Mohamed v. Holder23 decision and its implications on the
future of No-Fly List cases.24 Finally, this Note will conclude that
even the revised redress procedures unconstitutionally deprive
citizens of due process despite the recent change.25 This Note
concludes that with the evolution of judicial viewpoints towards
No-Fly List cases and in the wake of the government’s blanket
“national security” and “state secrets” defenses since 9/11, the
likelihood that courts will find the new redress procedures
unconstitutional once again is high.26 This Note then suggests
potential solutions to fix this constitutional issue because,
currently, American liberty interests are too important, the risk of
erred placement on the No-Fly List is too high, and the
government’s intent to keep secret information crucial to citizen
defenses forces people to involuntary remain on the No-Fly List
without proper redress.27 This erroneous deprivation of civil
liberties is still met with inadequate notice and the inability to be
heard to reverse placement.28 Instead, the government’s interests
in “national security” have wrongly taken precedence.29
sensitive information and endanger national security)
23. No. 1:11-CV-50 (AJT/MSN), 2015 WL 4394958 (E.D. Va. July 16, 2015).
24. See infra Part IV (analyzing Mohamed v. Holder, No. 1:11–cv–50
(AJT/MSN), 2015 WL 4394958 (E.D. Va. July 16, 2015) and its implications).
25. See infra Part V. Conclusion (arguing that the revisions to the procedures
are minimal and ineffective).
26. See infra Part V (concluding that the revised procedures provide little
due process protections alike the old unconstitutional procedures).
27. See infra Part V (discussing the various constitutional implications of
being placed on the No-Fly List).
28. See infra Part V (analyzing the deficiencies in a system that gives no
prior notice of placement coupled with the lack of ability to access all the
information regarding one’s case).
29. See infra Part IV. The “National Security” Blanket (implying that
because the No-Fly List redress procedures were recently revised and because
they still lack adequate redress, that little has been done to adequately protect
American civil liberties because the government’s interest in national security is
II. The Department of Homeland Security’s Traveler Redress
Program (DHS TRIP), the Old Procedures, and Judicial
A. The Old Procedures
The redress procedures described in this section have been
deemed unconstitutional according to some courts now more
concerned with the due process implications of inadequate
redress.30 Understanding these procedures, however, proves
important in analyzing the newly revised redress process and
continuing constitutional violations.31
Individuals often remain unaware of their possible No-Fly or
Selectee List placement until they arrive at the airport and
experience a public disbarment from flying or face lengthy,
inconvenient enhanced screenings.32 Under the old redress
procedures, a traveler who was blocked from flying or faced
unusual scrutiny at the airport could file a complaint with the
Department of Homeland Security’s Traveler Redress Program
(DHS TRIP).33 If DHS TRIP determined that incident was due to
an exact or near match to a watchlist, it forwarded the complaint
to the Federal Bureau of Investigation’s Terrorist Screening
Center (TSC), the entity that maintains the consolidated terrorist
database used to generate watchlists for various agencies.34 The
30. See Mohamed v. Holder, No. 1:11–cv–50 (AJT/MSN), 2015 WL 4394958,
at *2 (E.D. Va. July 16, 2015) (concluding “that DHS TRIP . . . did not provide a
constitutionally adequate opportunity to challenge denial of boarding at the time
Mohamed was denied boarding.”); Latif v. Holder, 28 F. Supp. 3d 1134, 1161 (D.
Or. 2014) (concluding “the absence of any meaningful procedures to afford
Plaintiffs the opportunity to contest their placement on the No-Fly List violates
Plaintiffs’ rights to procedural due process.”).
31. See infra Part IV. The “National Security” Blanket (analyzing the
constitutionality of the revised procedures).
32. See Justin Florence, Note, Making the No Fly List Fly: A Due Process
Model for Terrorist Watchlists, 115 YALE L.J. 2148, 2158 (2006) (expressing that
airline passengers do not find out they cannot board ahead of time and are often
detained at the ticket counter and do not know why; detailing when Senator
Kennedy recalled being refused a ticket and when asked why he was told “We
can’t tell you.”).
33. See Shirin Sinnar, Towards A Fairer Terrorist Watchlist, 40 ADMIN. &
REG. L. NEWS 4, 4 (2015) (suggesting “that No Fly List standards have strayed
from their original purpose of averting true threats to civil aviation.”).
34. See id. (including in this database the Transportation Security
Transportation Security Administration’s (TSA) No-Fly List is
included as a subset of the larger Terrorist Screening Database
(TSDB) TSC administers.35
The TSC then reviewed the complaint filed in consultation
with the intelligence agencies that originally requested that person
be listed.36 The individual eventually received a letter that the
review was complete.37 The letter either said: “we can neither
confirm nor deny any information about you which may be within
federal watchlists” and that “[t]his letter constitutes our final
agency decision” or “no changes or corrections are warranted at
this time” and the decision will be final in thirty days unless the
individual files an administrative appeal within that time.38
Information regarding whether the individual was or was not on
any list, the reasons for such inclusion, or whether any corrections
were made was not described.39 Overall, individuals seeking to
contest their possible inclusion on a watchlist faced the impossible
task of proving they do not threaten aviation or national security,
while also being uninformed as to the accusations against them.40
The only move contesters maintained at that point was to pursue
the remedies described in the letter: pursue an administrative
appeal of the determination letter with TSA or seek judicial review
Administration’s No-Fly List and Selectee List). The TSC is a multi-level agency
center that connects law enforcement communities and is administered by the
FBI with support from the Department of Homeland Security, the Department of
State, the Department of Defense and other entities in the intelligence
community. The TSC was created post 9/11 “to consolidate terrorist watchlists
and provide 24-hour-a-day, seven-day-a-week operational support for thousands
of federal screeners across and around the world.” Terrorist Screening Center,
Center (last modified Aug. 11, 2008).
35. Sinnar, supra note 33, at 4.
37. See id. (waiting for an undisclosed amount of time).
38. See Jennifer C. Daskal, Pre-Crime Restraints: The Explosion of Targeted
Noncustodial Prevention, 99 CORNELL L. REV. 327, 346 (2014) (citing Latif v.
Holder, 686 F.3d 1122, 1126 (9th Cir. 2012)).
40. See Transp. Sec. Intelligence Serv., supra note 6, at 4 (stating the criteria
for inclusion on the No-Fly List: a “person who is a known or suspected threat to
in the United States Courts of Appeals pursuant to 49 U.S.C.
B. District Courts Dismiss No-Fly List Cases in a Post 9/11 World
The American Civil Liberties Union (ACLU) filed the first
nationwide challenge to the No-Fly List and its secret
procedures.42 On January 7, 2005, the United States District Court
for the Western District of Washington decided Green v.
Transportation Security Administration.43 Airline passengers who
had no links to terrorist activity but had names similar or identical
to names on the No-Fly List brought action against the TSA
alleging that TSA’s actions in maintenance, management, and
dissemination of the No-Fly List were unconstitutional.44 The
Plaintiffs challenged the watchlists with a broad constitutional
Fifth Amendment right to due process argument.45 The Plaintiffs
also argued a Fourth Amendment claim against unreasonable
searches and seizures when the Defendants administered and
maintained the watchlists.46 The Defendants moved to dismiss
41. See 49 U.S.C. § 46110(a) (2003) (discussing the procedure for an
individual making disclosures when disclosing substantial interests). The code
[A] person disclosing a substantial interest in an order issued by the
Secretary of Transportation. . . may apply for review of the order by
filing a petition for review in the United States Court of Appeals for
the District of Columbia Circuit or in the court of appeals of the United
States for the circuit in which the person resides or has its principal
place of business.
42. See ACLU Files First Nationwide Challenge to the No Fly List, ACLU,
visited Mar. 12, 2016) (filing in federal district court in Seattle, Washington and
asking the court to declare that the No-Fly List violates airline passengers’
Constitutional rights under the Fourth and Fifth Amendments).
43. 351 F.Supp.2d 1119
(W.D. Wash. 2005)
(considering whether the TSA’s
actions in adoption, maintenance, and dissemination of the No-Fly List were
44. See id. at 1122 (following that TSA filed a motion to dismiss for lack of
subject matter jurisdiction and a motion to dismiss for failure to state a claim).
45. See id. (alleging that Defendants have “deprive[d] Plaintiffs of liberty
and property interests protected by the Fifth Amendment.”).
46. See id. (arguing that Defendants have “subjected [Plaintiffs] to
unreasonable searches and seizures in violation of the Fourth Amendment” and
Plaintiffs’ complaint, contending that the Security Directives were
final orders issued by the TSA and that any action for judicial
review must be filed with the court of appeals.47 The Plaintiffs
sought a remedy, but the district court dismissed the claims for
lack of jurisdiction and failure to state a claim upon which relief
could be granted.48 The court held that the TSA directives
establishing a No-Fly or Selectee List for enhanced screening were
“orders” over which the court of appeals had exclusive jurisdiction,
that procedures administered by the TSA to allow passengers with
names identical or similar to names on the No-Fly List to be
cleared were not “orders,” and therefore, the district court had
jurisdiction to consider passengers’ constitutional claims relative
to those procedures.49 But, the court then held that the passengers’
due process and Fourth Amendment challenges were “inescapably
intertwined” with a review of the procedures and merits
surrounding the adoption and maintenance of the No-Fly List and
the security and screening procedures mandated by the TSA and
therefore the district court ultimately lacked jurisdiction to
consider these constitutional challenges.50
This was the first court challenge on the use of government
watchlists.51 Although the district court determined it lacked
jurisdiction to hear the overall claims, it initially decided it could
hear the claims regarding the constitutionality of the procedures
seeking to require Defendants to remedy the due process and Fourth Amendment
defects of the No-Fly List).
47. See id. at 1121 (discussing how the TSA established Security Directives
relating to two groups of individuals—No-Fly List and Selectee List individuals—
who have been assessed to pose a risk to aviation, procedures to be followed, and
security measures to be taken by air carriers when these individuals seek to
48. Id. at 1130.
49. Green v. Transp. Sec. Admin., 351 F.Supp.2d 1119, 1121–30
50. See id. at 1127 (“Plaintiffs’ challenge to the adoption, maintenance, and
dissemination of the No Fly List under the Fourth and Fifth Amendments is
inescapably intertwined with a review of the procedures and merits surrounding
the adoption of the No Fly List.”).
51. See Yousri Omar, Note, Plane Harassment: The Transportation Security
Administration’s Indifference to the Constitution in Administering the
Government Watch Lists, 12 WASH. & LEE J. CIVIL RTS. & SOC. JUST. 259, 274
(2006) (describing the development of aviation security and the due process issues
with the old TSA redress procedures).
administered by TSA. Applying the “inescapable intertwinement”
doctrine—under which a special review statute applies not only to
orders by a covered agency that are challenged, but to claims
inescapably intertwined with an order by a covered agency52—the
court tied the claims it could hear with the claims it could not. In
the short aftermath of the 9/11 attacks, the district court was
uncomfortable analyzing the constitutionality of the No-Fly List as
it attempted to navigate the No-Fly List jurisdictional statute53 at
a time when national security was one of the country’s major
III. The District Courts Gain Jurisdiction and the New Redress
Procedures Are Created
A. Ibrahim v. Department of Homeland Security
United States district courts dismissed No-Fly List cases and
challenges to the redress procedures for lack of jurisdiction in the
early years following 9/11.54 The decision in Green v.
Transportation Security Administration in 2005 provided a model
for courts to determine that 49 U.S.C. § 46110(a) barred federal
district courts from hearing cases filing suit against the TSA
because Congress granted exclusive jurisdiction over such
challenges to the court of appeals.55
Three years later in 2008, however, the Ninth Circuit
concluded that the special jurisdiction statute that had previously
been understood to prevent passengers from gaining access to
federal trial courts had been misinterpreted.56 In Ibrahim v.
Department of Homeland Security, the Court read § 46110(a) in a
new way, concluding that would-be passengers could ask federal
district courts to decide whether their likely inclusion in the
nation’s secret antiterrorism database violated their rights.57
Ibrahim was a Malaysian citizen who was in the United States
from 2001 to 2005 on a valid student visa and was studying to
obtain her doctoral degree at Stanford University.58 She neither
had a criminal record nor any link to terrorists.59 She traveled to
Kuala Lumpur, Malaysia to present her doctoral research but was
stopped at the airport and could not board because the airline
discovered she was on the No-Fly List.60 After being handcuffed
and detained for approximately two hours, the FBI requested her
release.61 Ibrahim was informed that her name would no longer be
on the No-Fly List, but when she attempted to board the next day
she was again informed she was on the No-Fly List.62 She
eventually boarded after enhanced screenings along the way.63 It
56. See Ibrahim v. Dep’t of Homeland Sec., 538 F.3d 1250, 1255 (9th Cir.
2008) (holding that district court was not divested of subject matter jurisdiction
over alien’s claim for injunction directing removal of her name from the No-Fly
57. See id. (stating that the TSC’s placement of alien on No-Fly List was
“order” of agency not named in statute conferring exclusive jurisdiction on federal
courts of appeals for review of specified agencies’ orders).
58. See Brief for Ctr. for Constitutional Rights as Amicus Curiae Supporting
Plaintiff-Appellant, Ibrahim v. Dep’t of Homeland Sec., 538 F.3d 1250 (9th Cir.
2008) (No. 10-15873),
http://ccrjustice.org/home/what-we-do/our-cases/ibrahim-vdepartment-homeland-security-amicus (last visited Dec. 11, 2016) (explaining
that Ibrahim’s status as a doctoral student and the consequences of her being on
the No-Fly List) (on file with the Washington and Lee Journal of Civil Rights and
59. See id. (stating that she was included on the No-Fly List based on alleged
60. See Ibrahim, 538 F.3d at 1253 (stating that Ibrahim was handcuffed in
front of her fourteen-year-old daughter and then taken to the police station
61. See id. (explaining that an employee answered the phone at the
Transportation Security Intelligence Service’s office and instructed police to
detain Ibrahim for further questioning and to call the FBI, who released her after
was discovered that Ibrahim was placed on the No-Fly List in
November 2004 as a result of human error.64 Despite being taken
off of the No-Fly List shortly after her initial listing and the
government determining that she had “no nexus to terrorism,” she
remained in the TSDB until September 18, 2006.65 Shortly after
her removal from the TSDB, Ibrahim was placed back in the TSDB
before once again being removed at the end of May 2007.66 On
October 20, 2009, however, Ibrahim was again nominated to the
TSDB.67 She was not, however, placed on the No-Fly List.68
Ibrahim instead faced various denials of her visa application and
even her daughter, a United States citizen, was not permitted to
board a flight to the United States because her name was in a
section of the TSDB in which traveler admissibility to enter the
United States is evaluated. 69 Ibrahim filed suit against the DHS,
TSA, TSC, FBI, the Federal Aviation Administration (FAA), and
individuals associated with these entities.70
The government argued that Ibrahim’s challenge should be
dismissed because TSA orders could only be heard by the court of
appeals under the statute.71 The Ninth Circuit concluded that the
Francisco, but at the San Francisco airport and at every stopover, she was
publicly subjected to enhanced searches before boarding any flights).
(quoting Ibrahim., No. C 06–00545 at 16–18)
66. See id.
(explaining that Ibrahim’s student visa had been revoked in
January 2005 because of “law enforcement interest in her as a potential
67. See id. at 1155, 1141 (describing that TSC defines its
reasonablesuspicion standard as requiring “articulable facts, which, taken together with
rational inferences, reasonably warrant the determination that an individual is
known or suspected to be, or has engaged in conduct constituting, in preparation
for, in aid of or related to, terrorism or terrorist activities.”).
68. See id. at 1155
(discussing how Ibrahim applied for a visa in 2009 after
supposedly not being placed on the No-Fly List again, but receiving a letter with
the word “Terrorist” informing her of her visa denial)
69. See id. at 1155–56 (clarifying that United States Customs and Border
Control discovered the error within six minutes and corrected it the next day,
removing Ibrahim’s daughter from the TSDB).
70. See Ibrahim v. Dep’t of Homeland Sec., 669 F.3d 983, 991 (9th Cir. 2012)
(reversing the district court denial of injunctive relief and remanding for further
See Ibrahim v. Dep’t of Homeland Sec., 538 F.3d 1250, 1255 (9th Cir.
district court had jurisdiction over Ibrahim’s substantive challenge
because, while § 46110 grants exclusive jurisdiction to the federal
courts of appeals to review the orders of a number of agencies,
including TSA, DHS, and the FAA, the statute did not include the
TSC or FBI as one of its covered agencies.72 The district court could
therefore maintain federal question jurisdiction over substantive
challenges to the inclusion of one’s name on the No-Fly List since
TSC—an agency not included in the statute—“actually compiled
the list of names ultimately placed” on the List.73
But, unlike the substantive challenge, the Plaintiff’s’
procedural due process challenge required at least some review of
TSA orders such as the policies and procedures implementing DHS
TRIP and, therefore, § 46110 applied.74 Essentially, if Plaintiffs
were entitled to judicial relief, any remedy must involve both TSA
and TSC.75 The court therefore held that § 46110(a) requires all
challenges to TSA’s policies and procedures implementing the
NoFly and other lists to be filed directly in the court of appeals.76
Unlike the procedural due process challenge, however, the
substantive challenge remained open for district court analysis.
Seven years after the atrocities of 9/11 district courts could
open their doors to substantive challenges of TSC and FBI orders
and substantive challenges to List placement.77 Some believed that
Ibrahim was correctly decided and that courts across the country
should adopt the Ninth Circuit’s analysis to ensure the protection
of rights from infringement by administrative agencies.78 The
2008) (arguing that the TSA “order” to place Ibrahim’s name on the No-Fly List
was inescapably intertwined with that agency’s orders and is therefore still
reviewable under § 46110).
72. See id. at 1255
(stating that the TSC is not part of the TSA or any other
agency named in § 46110, but is a part of the FBI)
73. See id. (basing this assessment on undisputed facts).
74. See id. at 1256 (discussing how the statute provides jurisdiction to review
an “order”—it says nothing about “intertwining,” escapable or otherwise—with
regards to the TSC’s order to place Ibrahim on the No-Fly List).
75. See id. at 1257 (including TSA orders as reviewable under § 46110).
76. See id.
(concluding that § 46110 stripped the district court of the
jurisdiction it would otherwise have had over Ibrahim’s APA claim regarding the
government’s policies and procedures implementing the No-Fly List)
77. See generally id. at 1257
(concluding that § 46110 did not divest district
court of jurisdiction over alien’s claim for injunction directing removal of her name
from the No-Fly List)
78. See generally Shaina N. Elias, Challenges to Inclusion on the No Fly List
problem remained relevant because redress procedures for one’s
placement on the No-Fly List were inadequate and challenges
continued to arise from annoyed false-positives and frustrated
B. Latif v. Holder
Eleven years after 9/11, the Ninth Circuit decided Latif v.
Holder and interpreted the jurisdictional statute in a new light.
The Court held that the statute providing for the court of appeals’
exclusive jurisdiction over challenges to certain agencies’
aviationrelated orders did not divest the United States District Court for
the District of Oregon of jurisdiction over plaintiffs’ substantive
due-process challenge or over their procedural due-process
challenge.80 Once remanded back to the district court in 2013, the
court heard oral argument on the parties’ motions and issued an
Opinion and Order granting in part Plaintiffs’ Cross-Motion,
denying in part Defendants’ Motion, and deferring ruling on the
remaining portions of the pending motions to permit additional
development of the factual record and supplemental briefing.81 The
district court concluded that the Plaintiffs established the first
factor under the Supreme Court’s Mathews v. Eldridge test
because they had protected liberty interests in their rights to
travel internationally by air and had rights to be free from false
governmental stigmatization that were affected by their inclusion
on the No-Fly List.82 However, the court found the record not
Should Fly in District Court: Considering the Jurisdictional Implications of
Administrative Agency Structure, 77 GEO. WASH. L. REV. 1015 (2009).
79. See Zoe Mintz, No Fly List: The Mysterious Document That Can Leave
You Grounded for Life, INT’L BUS. TIMES (June 25, 2014, 3:37 PM),
http://www.ibtimes.com/no-fly-list-mysterious-document-can-leave-yougrounded-life-1611756 (discussing how a “false-positive” is a passenger not on the
No-Fly List who has a name that matches or is similar to a name on the List and
often faces hardship at the airport) (on file with the Washington and Lee Journal
of Civil Rights and Social Justice).
80. See Latif v. Holder, 686 F. 3d 1122, 1130 (9th Cir. 2012) (rejecting
Defendant’s argument that the claims should be dismissed on grounds that TSA
was an indispensable party that could not be joined).
81. See Latif v. Holder, 28 F.Supp.3d 1134, 1139 (D. Or. 2014) (denying
Defendants’ motion and granting Plaintiffs’ motion).
82. See id. at 1139–60 (analyzing Mathews v. Eldridge, 424 U.S. 319 (1976),
sufficiently developed to balance the rest of the Mathews
analysis.83 It could not balance Plaintiffs’ protected liberty
interests with the Defendants’ procedural protections and
government interests at stake at that time.84
The court again took the motions under advisement in March
2014.85 The district court now went far enough to determine that
the DHS’s existing procedures to contest one’s placement on the
list were “wholly ineffective” and ordered the government to
fashion new, constitutionally adequate procedures.86
1. The District Court of Oregon’s Mathews v. Eldridge Analysis in
the No-Fly List Context
Thirteen United States citizens, including four United States
military veterans and legal permanent residents barred from
flying, brought this ACLU suit in the District of Oregon.87 The
Latif plaintiffs alleged that they were denied redress after they
were not allowed to board airline flights to or from the United
States or over United States airspace because they had been placed
on the No-Fly List, in violation of their procedural due process
rights under the Fifth Amendment.88 Because they had not been
given any post-deprivation notice or any meaningful opportunity
to contest their inclusion, the Plaintiffs argued that they had not
which challenged the constitutional validity of administrative procedures for
establishing existence of a continuing disability, and found that the recipient was
entitled to Social Security Disability benefits after he was notified his benefits
would terminate without an opportunity for a hearing).
83. See id. at 1139 (including the utility of additional safeguards on the
Defendants’ side of the balancing factors).
85. See id. (stating that court heard oral argument on March 17, 2014).
86. See id. at 1161 (stating that the procedures fall short to be afforded notice
“reasonably calculated, under all the circumstances, to appraise interested
parties of the pendency of the action and afford them an opportunity to present
87. See id. at 1140 (claiming that federal and/or local government officials
told some of the plaintiffs that they were on the No-Fly List).
88. See id. (stating that each plaintiff submitted applications for redress
through DHS TRIP and did not receive explanations or information as to whether
they would be permitted to fly in the future).
been provided due process.89 They also alleged that the
government’s actions violated Sections 706(2)(A) and 706(2)(B) of
the Administrative Procedure Act.90
The court underscored that the fundamental requirement of
due process is the opportunity to be heard “at a meaningful time
and in a meaningful manner.”91 Analyzing the Mathews v.
Eldridge three-factor test to evaluate the sufficiency of due process
procedural protections, the court looked at (1) “the private interest
that will be affected by the official action”; (2) “the risk of an
erroneous deprivation of such interest through the procedures
used, and the probative value, if any, of additional or substitute
procedural safeguards”; and (3) “the Government’s interest,
including the function involved and the fiscal and administrative
burdens that the additional or substitute procedural requirement
The first prong of Mathews requires that the official action
affect a private interest.93 To analyze this prong, courts typically
look to see if an individual has been deprived of property or
liberty.94 The right to travel has already been deemed as part of
the “liberty” that a citizen cannot be deprived of without due
process of law.95 Specifically, the Supreme Court in Saenz v. Roe
has declared that the right to travel freely using highways and
other instrumentalities of interstate commerce is a protected
liberty.96 The issue in Latif v. Holder was whether the taking of
one’s freedom to travel internationally by aircraft constitutes the
deprivation of liberty without due process of law.97 The Oregon
district court answered this question and determined that the
right to international travel is a part of the liberty of which a
citizen cannot be deprived without due process of law.98 The
Defendants argued that there was no constitutional right to travel
by airplane or the most convenient form of travel, and that
Plaintiffs’ rights to travel were not constitutionally burdened
because the No-Fly List only prohibits travel by commercial
aviation.99 Case law on the right to international travel
demonstrates a clear view that there is no absolute right to travel
internationally afforded to United States citizens in the
Constitution, but it does not mean due process can be ignored when
denying an individual’s ability to travel abroad.100
Courts have treated the right to travel internationally as a
luxury until recently, and courts like the Latif court now view “air
transport in modern times as practically the only form of
transportation, travel by ship being prohibitively expensive.”101
Today, denial of the right to travel will likely lead to loss of
income and loss of employment in an evolving age of global
markets and inter-country trade.102 As it has been established that
96. See Saenz v. Roe, 526 U.S. 489, 500–01 (1999) (determining that the right
to travel embraces the right to enter and leave another state, the right to be
treated as a welcome visitor while temporarily present in another State, and the
right to be treated like other citizens of that State).
97. See Latif v. Holder, 28 F.Supp.3d 1134, 1148 (D. Or. 2014) (disagreeing
with the Defendants’ contention that international air travel is a mere
convenience in light of the realities of the modern world).
98. See id. (citing Kent v. Dulles, 357 U.S. 116, 125 (1958) and concluding
that Plaintiffs have a constitutionally-protected liberty interest in traveling
internationally by air).
99. See id. (noting that the Constitution does not ordinarily guarantee the
right to travel by any particular form of transportation, but clarifying that air
transport in these modern times is practically the only form of transportation
because traveling by ship is prohibitively expensive).
100. See Lowe, supra note 95, at 174 (“[I]nternational travel should be
evaluated from the same perspective that domestic travel is viewed.”).
101. See Latif v. Holder, 969 F.Supp.2d 1293, 1303 (D. Or. 2013) (stating that
needs to travel oversees quickly because of the birth of a child, the death of a loved
one, a business opportunity, or a religious obligation were ignored by the
102. See Lowe, supra note 95, at 175 (“By placing a person’s name on the
Noairline passengers have both a fundamental liberty interest in
interstate travel,103 as well as a property interest in their airline
tickets, the contractual relationship that creates a property
interest and statutory entitlement104 to air travel means that the
government cannot deprive such travel without due process.105 The
right to travel internationally has become viewed as a fundamental
right that merits strong due process protections.106
The second Mathews factor analyzes the risk of erroneous
deprivation and the probable value, if any, of additional or
substitute procedural safeguards.107 The placement of individuals
who never did, or no longer, pose a threat to national security
creates oversized lists.108 The size of these lists coupled with the
amount of those innocent and unable to correct their situation due
to insufficient redress procedures poses a high risk of erroneous
deprivation on the ability to fly.109
The third factor the court examined in Latif was the
government’s interest, including fiscal and administrative burdens
Fly List, the government is effectively denying one the right to travel.”).
105. See id. at 280 (discussing how an airline passenger purchases a ticket
and therefore enters into a contractual relationship with an airline in which a
seat is guaranteed in return for adequate consideration in the form of money).
106. See Latif v. Holder, 28 F.Supp.3d 1134, 1149 (D. Or. 2014) (“Accordingly,
the Court concludes on this record that Plaintiffs have a
constitutionallyprotected liberty interest in traveling internationally by air, which is affected by
being placed on the List.”). Judge Brown discussed how inclusion on the No-Fly
List severely restricted the Plaintiffs’ ability to travel internationally and that
realistic implications of being on the No-Fly List are potentially far reaching,
rejecting the government’s argument that that No-Fly List placement was merely
a restriction on the most convenient means of international travel. Id.
107. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976) (listing the second
prong of the three-part Mathews test).
108. See Latif, 28 F.Supp.3d at 1152 (analyzing the second prong against the
risks that travelers will be placed on the No-Fly List under Defendants’
procedures despite not having a connection to terrorism or terrorist activities).
109. See id. at 1153 (concluding that judicial review provides an independent
examination but does little to cure the risk of error because the review is based
on a one-sided and potentially insufficient record that the TSC relied on in its
can now be read to allow district courts to question the
constitutionality of the DHS redress procedures desperately in
further need of change and to consider fundamental due process
violations in need of judicial scrutiny.139
D. The New Procedures
Under the newly revised procedures established in the
aftermath of Latif v. Holder, individuals who are denied boarding
and apply for redress through DHS TRIP will now receive a letter
stating whether or not that individual is listed on the No-Fly List,
with the option to receive and/or submit additional information.140
If the individual elects to receive additional information, DHS
TRIP will provide a second and more detailed letter identifying the
specific criterion under which the individual has been placed on
the No-Fly List.141 An unclassified summary of information
supporting the individual’s No-Fly List status will be provided,
taking into account the national security and law enforcement
interests at stake.142 The government admits that an unclassified
summary may not be possible because the amount and type of
information provided will vary on a case-by-case basis.143 The
second letter will also allow the individual to submit written
responses and other materials so that the TSA Administrator can
review such submissions and issue a final determination based on
unclassified and classified information.144 TSA will provide the
had exclusive jurisdiction because they were intertwined with procedures and
merits surrounding the adoption of the No-Fly List and security and screening
139. See generally Mohamed v. Holder, No. 1:11–cv–50 (AJT/MSN), 2015 WL
4394958 (E.D. Va. July 16, 2015) (leaving the door open for Plaintiff to apply
through the revised procedures and sue Defendants again on the constitutionality
of the revised procedures).
140. See id. at *25 (describing the current redress procedures and noting that
Plaintiff Mohamed has never been charged with nor alleged to have committed a
crime related to terrorism or otherwise).
141. See id. (distinguishing from when DHS TRIP neither confirmed nor
denied placement on the No-Fly List).
142. See id. (evolving from when DHS TRIP did not provide any summary).
143. See id. (noting that the government explains that in some circumstances,
an unclassified summary may not be possible).
144. See id. at *26 (including exhibits and other materials that the individual
individual with a final written determination containing the basis
for the decision and notify the individual of the ability to seek
further judicial review under 49 U.S.C. § 46110.145
IV. The “National Security” Blanket
A. Mohamed v. Holder and “State Secrets”
The installation of new redress procedures will further
welcome judicial scrutiny as people challenge the new procedures
as unconstitutional. The flaws inherent in the new redress process
coupled with the government’s treatment of national security will
make the No-Fly List a controversial topic in years to come.
The interest in No-Fly List cases may stem from the
government’s use of the “national security” argument.146 In No-Fly
List litigation, the government often argues that “state secrets”
and national security interests prevent them from litigating a
plaintiff’s core claims because revealing classified information
would endanger the nation.147 This argument may be used to
dismiss cases because the theory rests on the assumption that
national security interests outweigh individual liberties.148 The
theory might have gained more ground in the immediate months
and years following 9/11, but over fifteen years have passed since
the tragic attack on American soil and the government maintains
its strong position now as it did then: that individual civil liberties
145. See id. (determining that the court could not conclude that the newly
revised procedures would provide a constitutionally adequate opportunity for
Mohamed to have his status reviewed).
146. See id. at *24 (allowing the court to adjudicate whether Mohamed had a
constitutionally adequate opportunity to contest his No-Fly List status without
any information claimed by the government to be protected by the state secrets
privilege, and leaving to door open for re-litigation once Mohamed applies through
the newly revised procedures).
147. See id. at *3 (claiming that Plaintiff’s procedural due process claims
should be dismissed on the basis of the state secrets privilege).
148. See United States v. Reynolds, 345 U.S. 1, 10 (1953) (stating that a court
is obliged to honor the Executive’s assertion of the state secrets privilege if it is
satisfied and if there is reasonable danger that compulsion of the evidence will
expose military matters which will harm national security).
must often be sacrificed for national security.149 Now, however,
more and more courts question this position.150
Take, for example, the United States District Court for the
Eastern District of Virginia’s treatment of the “state secrets”
privilege in Mohamed v. Holder.151 Plaintiff Gulet Mohamed, a
United States citizen, challenged his placement on the No-Fly List
after an American carrier denied him boarding on an international
flight.152 He is of Somali descent, and in 2009, at the age of sixteen,
he temporarily left the United States to travel to Yemen, Somalia
and Kuwait in order to meet family, study Arabic, and attend
school.153 On December 20, 2010, Kuwait authorities detained him
at a deportation facility, during which time he alleged he was
interrogated, beaten, and tortured.154 Mohamed had never been
charged with a crime of terrorism nor alleged to have committed
any criminal offense.155 FBI agents visited him twice at a
deportation facility before Mohamed’s family purchased a ticket for
him to return to the United States at the suggestion of Kuwaiti
officials.156 Mohamed was again denied boarding.157 On January
18, 2011, Mohamed filed suit against the heads of the DOJ, FBI,
TSC, DHS, and the TSA.158 On January 20, 2011, the Defendants
advised the court that arrangements had been made for Mohamed
149. See generally Mohamed v. Holder, No. 1:11–cv–50 (AJT/MSN), 2015 WL
4394958 (E.D. Va. July 16, 2015) (arguing that Mohamed’s entire claim should be
dismissed and litigation prohibited because of state secrets and national security
150. See id. at *2 (rejecting the government’s use of the state secrets privilege
151. See id. (determining that there was no information protected from
disclosure under the state secrets privilege that is necessary either for Mohamed
to establish liability under his procedural due process claims or for the
Defendants to establish an available defense to that claim).
152. See id. at *4 (listing the background of the case).
155. See id. at *1 (emphasizing that applying the No-Fly List to such an
American citizen represents an unprecedented application of Executive Branch
authority in the name of national security through secret administrative
proceedings based on undisclosed information according to undisclosed criteria).
156. See id. at *4 (visiting him once on December 28, 2010 and again on
January 12, 2011).
158. See id. at *5 (seeking emergency relief to return to the United States).
to return to the United States, and Mohamed returned to the
United States on a commercial airliner on January 21, 2011.159
Echoing previous discussion, the Fourth Circuit Court of
Appeals concluded that its exclusive jurisdiction pursuant to 49
U.S.C. § 49110 did not extend to claims and remedies against
TSC—an agency not included in the statute—and then remanded
the case for further proceedings to the district court.160 The district
court would host the battleground for this No-Fly List case, not the
court of appeals.
The court questioned the information that must be made
available to a United States citizen in order to provide that citizen
with a constitutionally adequate opportunity to challenge his or
her placement on the No-Fly List.161 Mohamed claimed that he was
denied a meaningful opportunity to challenge his inability to fly on
a commercial aircraft in violation of his Fifth Amendment
procedural due process rights.162 His claim focused on the lack of
notice provided him before and after his boarding prohibition and
the lack of any meaningful opportunity to refute any information
that was used to place him on the No-Fly List.163 Mohamed
essentially desired an opportunity to show that he posed no threat
to commercial aviation.164 In his claim, Mohamed depended on his
liberty interests in traveling by air, being able to return to the
United States after travelling abroad, and being free from false
governmental stigmatization as a terrorist.165
159. See id. (responding to Mohamed’s request inter alia for emergency relief
to return to the United States).
160. See id. at *6 (transferring earlier to the Fourth Circuit Court of Appeals
on the grounds that the Fourth Circuit Court of Appeals had exclusive jurisdiction
pursuant to 49 U.S.C. § 49110(a)).
161. See id. at *1–*2 (“The constitutional inquiry presents unsettled issues
that are complicated in their resolution by the criteria used to compile the No-Fly
List and the classified information that, of necessity, is used to determine whether
a person satisfies that criteria.”).
162. See id. at *2 (noting specifically his lack of notice of placement and lack
of meaningful opportunity to refute placement).
163. See id. (arguing that he had no opportunity to refute any derogatory
164. See id. (claiming that because he did not receive this opportunity, he
suffered liberty deprivations).
165. See id. (claiming that he had no opportunity to refute any “derogatory”
information specifically and this resulted in constitutional violations and liberty
The government responded that DHS TRIP was
constitutionally adequate and that any constitutional issues with
that process were cured through revised review procedures and,
therefore, Mohamed’s procedural due process claims were moot.166
In the alternative, the government submitted that Mohamed’s
procedural due process claims should nevertheless be dismissed on
the basis of the state secrets privilege.167 On May 28, 2014, the
Defendants filed a motion to dismiss the case in its entirety based
on their invocation of the state secrets privilege.168 Because the
government asserted the state secrets privilege, the court ordered
the Defendants to submit for ex parte, in camera review the
documents pertaining to the due process claims that they
considered covered by the state secrets privilege and law
On October 20, 2014, the court concluded that those
documents did not prevent Mohamed from litigating his
procedural due process claims and did not prevent the Defendants
from defending against those claims.170 The court would allow the
Defendants to raise the state secrets privilege for specific
documents later if the Defendants believed that they could not
adequately defend their position using the specific documents
during actual adjudication.171 The Defendants took advantage of
the opportunity and again attempted to invoke state secrets to
dismiss Mohamed’s procedural due process claim.172 The court held
a closed hearing on March 17, 2015 concerning the existence of
state secrets and their relevance to the claims at hand.173
166. See id. at *2–*3 (explaining that DHS TRIP is a review process by which
a person denied boarding may request review of his status).
167. See id. at *3 (arguing litigation impossible because the information was
168. See id. at *7 (facing rejection by Judge Anthony J. Trenga).
169. See id. (indicating that these documents are not available to the public).
170. See id. (stating that the court would consider documents in the specific
context if the Defendants contended during actual adjudication that it could not
adequately defend against such claims without the use of specific documents
claimed to be protected under the state secrets privilege).
171. Id. at *8.
172. See id. (attempting to dismiss the procedural due process claim as an
alternative grounds for their summary judgment motion).
173. See id. (providing the Defendants with the opportunity to provide and
the court to consider additional information concerning the Defendants’ claims
Judge Anthony J. Trenga decided the case and stated on the
first page of his opinion that when the No-Fly List was applied to
a United States citizen like Mohamed, the List represented “an
unprecedented application of Executive Branch authority in the
name of national security through secret administrative
proceedings based on undisclosed information according to
undisclosed criteria”174—the United States acknowledged this
application.175 The court concluded that DHS TRIP did not provide
a constitutionally adequate opportunity to challenge one’s denial
of boarding at the time it existed when Mohamed was denied.176
The court then concluded that there was no information protected
from disclosure under the state secrets privilege that was
necessary either for Mohamed to establish his procedural due
process claims or for the Defendants to establish an available
defense to that claim.177 Finally, the court decided that it could not
conclude as a matter of law whether the revised DHS TRIP process
now available to Mohamed due to the change in redress procedures
was constitutionally adequate.178 Judge Trenga therefore left
Mohamed an opportunity to challenge the revised redress process
after requesting his status again via the new procedures.179
This opinion represents a recent example of a court taking on
a No-Fly List case, interpreting a constitutional question on the
redress procedures, keeping the door open for it to reevaluate the
constitutionality of the new procedures, and setting the stage to
address issues and flaws with an amended approach to individual
due process.180 Mohamed can now choose to pursue a review of his
concerning the existence of state secrets and their relevance to the pending
procedural due process claims).
174. See id. at *1 (mentioning the government’s concession to the statement
regarding application of Executive Branch authority to this individual as
unprecedented in the name of national security).
175. See id. (conceding Judge Trenga’s belief in this unprecedented
176. See id. (reinstating the belief that the old procedures were
177. See id. (following Defendants’ attempt to invoke the state secrets
privilege to bar litigation).
179. See id. (concluding that the constitutionality of the revised procedures
could not be analyzed before Mohamed applies through them).
180. See id. (determining that the present record cannot lead to conclusive
status under the revised procedures, wait for the TSA and TSC to
respond, and compile an administrative record for his next suit.181
B. Core Issues
The concept of military necessity is seductively broad, and has
a dangerous plasticity. Because they invariably have the visage
of overriding importance, there is always a temptation to invoke
security “necessities” to justify an encroachment upon civil
liberties. For that reason, the military-security argument must
be approached with a healthy skepticism . . . .
-Justice Brennan in Brown v. Glines 182
The new redress procedures and No-Fly List placement create
a too flawed and too classified system for the state secrets doctrine
and national security arguments to reasonably and
constitutionally apply to individuals.183 Government agencies may
nominate individuals to be included in the TSDB, of which the
NoFly List is a subset.184 The known standard for inclusion on the
TSDB is “reasonable suspicion to establish that the individual is a
known or suspected terrorist,” also described as “known or
appropriately suspected to be or to have engaged in conduct
constituting, in preparation for, in aid of, or related to
terrorism.”185 Sufficient identifying information and substantive
answers on presented constitutional inquiries).
181. See id. at *28
(asking Mohamed to state in a report by August 7, 2015
whether he wishes to request review of his status under the revised DHS TRIP,
and if so, whether this action should be stayed pending completion of that
182. See Brown v. Glines, 444 U.S. 348, 369 (1980) (Brennan, J., dissenting)
(reversing the Court of Appeals in this case where a United States Air Force
Reserve officer brought suit based on allegations that the Air Force’s regulations
relating to the circulation of petitions on air force bases violated the First
183. See generally Mohamed v. Holder, No. 1:11–cv–50 (AJT/MSN), 2015 WL
4394958 (E.D. Va. July 16, 2015) (determining that the state secrets doctrine did
not apply in preventing the Plaintiffs’ litigation).
184. See Lowe, supra note 95, at 160 (discussing how these subsets of the
larger TSDB are administered by the TSC, which was created to consolidate
terrorist watch lists and provide 24/7 operational support for thousands of federal
screeners across the world).
185. See Mohamed, 2015 WL 4394958 at *3 (summarizing the TSDB and
NoFly List nomination processes).
criteria, known as “derogatory information,” must support
nomination.186 That criteria and intelligence often remains
classified.187 To be placed on the No-Fly List specifically from the
TSDB, the individual must be a “known or suspected threat to
The List itself creates a high risk of error and mistake.189
Those who are wrongly identified or believe they have been
wrongly delayed or prohibited from boarding aircrafts face an
extremely burdensome infringement on their right to travel.190 The
TSC’s internal auditing process periodically determines the
appropriateness of an individual’s inclusion on the List, but the
List continues to misidentify individuals and produce
falsepositives and false-negatives despite removing almost 3,700 names
between July and October of 2004.191 The DOJ found multiple
deficiencies in the watchlist: errors of both over-inclusion and
under-inclusion and 35% of the names on the list are characterized
A common complaint against the No-Fly List involves error:
people are often placed on the List because they have a name
similar in sound or spelling to someone who probably should be on
the List.193 For example, 60 Minutes brought together a group of
186. See id. at *5 (noting that derogatory information is used to nominate
187. See Lowe, supra note 95, at 160 (explaining that selection criteria for the
No-Fly List is kept secret).
188. See Transp. Sec. Intelligence Serv., supra note 6, at 4 (laying out the
undisclosed criteria with the disclosed criteria).
189. See Lowe, supra note 95, at 186 (describing how one subgroup of
individuals consists of individuals who have been mistakenly placed on the
NoFly List and who wish to have their names removed).
190. See Hu, supra note 12, at 1789 (noting that No-Fly List placement means
prohibition on boarding aircraft).
191. See id. at 1791 (providing three examples of No-Fly List
misidentification: individuals denied access to a commercial flight or repeatedly
detained include a U.S. Marine, a U.S. Senator, and a U.S. House
See id. at 1791–92 (emphasizing the unreliability of the List).
193. See Sid Lipsey, 8 Ways You Can End Up On The No Fly List, FOX NEWS
(Sept. 9, 2015),
http://www.foxnews.com/travel/2015/09/09/8-ways-can-end-upon-no-fly-list/ (providing an example where one man was placed on the No-Fly
List because he shared a name with an Irish Republican Army operative who was
active in the 1960s and 1970s, which also landed his son on the List who was not
even born during the operative’s heyday) (on file with the Washington and Lee
twelve people named Robert Johnson in 2007 who experienced
problems flying, likely because a man named Robert Johnson had
been convicted of plotting to bomb a Hindu temple and movie
theatre in Toronto.194 The man the government was looking for was
a 62-year-old black man who was convicted, served twelve years,
and was then deported to Trinidad.195 Unfortunately, airline ticket
agents currently do not have any of that crucial identifying
information on their computer screens, apart from a name,
suggesting further flaws at the enforcement level of the No-Fly
List.196 Incorrect and mistaken placements continue to occur even
after Congress directed the DHS to establish a timely and fair
process for mistaken and wrongly-included individuals after
A redress process is questionable when secrets can be found at
every turn.198 In a closed session, the United States District Court
for the Eastern District of Virginia in Mohamed issued an order
identifying all the issues to be discussed in closed session after the
government raised a “state secrets” defense.199 The issues the court
heard in closed session are issues potentially essential to a United
States citizen’s case and defense. For example, the court ordered
the government to discuss (1) how the under seal documents as to
which the state secrets privilege was claimed precluded
adjudication of the procedural due process claims without their use
and disclosure; (2) how the Defendants applied the criteria for
Journal of Civil Rights and Social Justice).
194. See id. (describing the No-Fly List as “America’s Most Controversial
List.”); see also Unlikely Terrorists On No Fly List, CBS NEWS (Oct. 5, 2006),
http://www.cbsnews.com/news/unlikely-terrorists-on-no-fly-list/2/ (describing in
detail the “60 Minutes” report and interview of twelve Robert Johnsons) (on file
with the Washington and Lee Journal of Civil Rights and Social Justice).
195. See id. at *2 (indicating that the other Robert Johnsons suffered
humiliation because they were mistaken for this Robert Johnson).
196. See id. (suggesting that this information should be provided as a matter
of common sense).
197. See Mohamed v. Holder, No. 1:11–cv–50 (AJT/MSN), 2015 WL 4394958,
at *5, n.2 (E.D. Va. July 16, 2015) (describing limited Congressional authorization
of the No-Fly List).
198. See Hu, supra note 12, at 1788 (“In recent years, litigation has forced the
disclosure of information on what specific data ultimately supports a decision to
place an individual on the No-Fly List.”).
199. See Mohamed, 2015 WL 4394958, at *8, n.4 (identifying the issues to be
discussed in closed session).
placement on the No-Fly List consistent with the restrictions listed
in its publicly disclosed criteria; (3) any criteria other than those
publicly disclosed for the purposes of placing the United States
citizens on the No-Fly List; (4) how Defendants distinguished
between United States citizens that are placed on the No-Fly List
and those placed on the Selectee List and the need to have a level
of security beyond those protections afforded through the Selectee
List; (5) whether, and if so, how national security considerations
make it impractical or undesirable to submit for ex parte, in camera
judicial review and approval the placement of United States
citizens on the No-Fly List, either before a citizen’s placement on
the No-Fly List or within a specific time period after placement on
the No-Fly List; and (6) whether, and if so, how national security
considerations make it impractical or otherwise undesirable for
United States citizens who challenge their inability to board a
commercial aircraft to receive information concerning their
placement on the No-Fly List under procedures comparable to
those employed in criminal matters under the Classified
Information Procedures Act (CIPA); and (7) any other national
security information that the Defendants believed was necessary
for the court to consider in connection with its consideration of the
procedural due process claims and any remedies that may be
ordered with respect to any constitutional violations that the court
may ultimately find.200
The answers to these questions were meant for closed session,
and individuals are not currently privy to all the information
crucial to their defense against List inclusion and deprivation of
liberty. These questions and answers are imperative in analyzing
the constitutionality of the newly revised No-Fly List procedures.
If the government’s answers remain secret and hence unavailable
to the public deserving of explanation, the new procedures will
likely face serious due process implications, especially if the
government’s actions unconstitutionally prevent an individual
from defending herself.
200. See id. at *8–*9 (listing eight different issues for the court to consider,
including additional information concerning the Defendants’ claims concerning
state secrets and relevance to the pending procedural due process claims).
C. Analyzing the Constitutionality of the Revised DHS TRIP
Judge Trenga’s court order and his questions to the
government suggest the importance and strength assigned to a
United States citizen’s liberty interests implicated by placement
on the No-Fly List.201 These matters also suggest, however, that
the government’s interest in protecting the safety of commercial
aircraft is compelling and a balance must therefore be
considered.202 In the past, the government attempted to argue that
United States persons have no constitutionally protected right to
fly.203 In August of 2013, the United States District Court of
Oregon disagreed and held that constitutional rights are at stake
when the government condemns Americans as suspected terrorists
and bans them from international travel.204
The government also maintained that national security
concerns meant that the United States could not confirm or deny
whether people were on the No-Fly List— even though boarding
prohibition at the airport would likely suggest No-Fly List
placement—and that it could not provide reasons or a hearing
before a neutral decision maker.205 This firm stance clearly violates
due process. Though individuals can now discover if they are in
fact on the No-Fly List, it is still unclear what reasons, if any, will
be provided to an individual under the revised procedures. The
government’s continuing refusal to provide proper due process in
201. See id. at *10 (stating that No-Fly List placement has an inherent,
substantial risk of erroneous deprivation, particularly with respect to a total
exclusion through the No-Fly List as opposed to the Selectee List’s heightened
203. See id. at *11 (arguing that a traveler does not have a constitutional right
to the most convenient mode of travel and characterizing Mohamed’s liberty
interest in international travel as “weak.”).
204. See Nusrat Choudhury, Victory! Federal Court Recognizes Constitutional
Rights of Americans on the No Fly List, ACLU (Aug. 29, 2013, 2:31 PM),
tutional-rightsamericans-no-fly-list (explaining the outcome of the Latif decision, an ACLU
challenge to the No Fly List) (on file with the Washington and Lee Journal of Civil
Rights and Social Justice).
205. See id. (asserting that this argument is absurd as a practical matter and
violates due process as a constitutional matter).
the context of No-Fly List placement and redress violates the
1. Constitutional Rights Affected by No-Fly List Placement
The current redress procedures still carry an inherent,
substantial risk of erroneous deprivation. Americans not only face
deprivation of their due process rights with No-Fly List placement,
but also face deprivation of other constitutional rights as years
pass and No-Fly List redress remains inadequate.207 For example,
as a result of the of the tragic attack in San Bernardino, California,
President Barack Obama urged Congress to ensure that people on
the No-Fly List be prohibited from purchasing guns.208 United
States citizens chosen for the No-Fly List now face threats to their
Second Amendment rights with simple placement.209 Luckily,
Congress defeated a proposal suggesting just that,210 but the
proposal of such a bill remains a horrifying nightmare for citizens
unable to fight and address their potential erred placement on
such a secretive watchlist.
Non-violent political activists issued complaints suggesting
things they said in the past might have included them on the
NoFly List,211 implicating First Amendment rights.212 Former
206. See id. (resulting from Latif was the government’s announcement that it
would tell United States citizens and lawful permanent residents whether they
are on the No-Fly List after placement, and possibly offer reasons, but no hearing
is yet available).
207. See Lipsey, supra note 193 (discussing First Amendment implications
from being placed on the No-Fly List).
208. See Hina Shamsi, Until the No Fly List is Fixed, It Shouldn’t Be Used to
Restrict People’s Freedoms, ACLU (Dec. 7, 2015, 5:30 PM),
https://www.aclu.org/blog/speak-freely/until-no-fly-list-fixed-it-shouldnt-be-usedrestrict-peoples-freedoms (discussing President Obama’s response to the San
Bernardino attack, where 14 people were killed in a mass shooting and attempted
bombing) (on file with the Washington and Lee Journal of Civil Rights and Social
209. See id. (proposing that people placed on the No-Fly List should be
prohibited from purchasing guns).
211. See Lipsey, supra note 193 (indicating that something you said in the
past can result in your No-Fly List placement).
212. See U.S. CONST. amend. I (“Congress shall make no law. . . abridging the
freedom of speech, or of the press . . . and to petition the government for a redress
Princeton University Professor Walter Murphy was denied a
boarding pass at Newark International Airport, suspecting that
his high-profile lecture criticizing then-President Bush placed him
on the No-Fly List.213 Wade Hicks, the spouse of a Navy lieutenant,
claimed that his comments about 9/11 placed him on the No-Fly
List.214 Whether these complaints hold truth or not, redress at that
time would not have disclosed what evidence placed these
individuals on the No-Fly List.215 Under today’s procedures, it is
still questionable whether TSC would disclose this information.216
Government-led big data programs like the No-Fly List may
implicate substantive due process issues regarding privacy
interests as well.217 Currently, however, the Supreme Court has
raised but largely avoided answering the question of whether and
how the Fourth Amendment might apply and protect individuals
from government surveillance in the context of law enforcement
investigation.218 If these questions find answers, however, the
NoFly List may implicate informational privacy conflicts.219
213. See Lipsey, supra note 193 (stating that Murphy told The Guardian his
suspicions in 2007).
See id. (claiming that he was told he was on the No-Fly List).
215. See Lowe, supra note 95, at 163 (discussing how DHS TRIP did not
confirm whether or not someone was placed on the No-Fly List and did not provide
any further details as to whether the complainant may or may not be in the TSDB
or on the No-Fly List).
216. See Mohamed v. Holder, No. 1:11–cv–50 (AJT/MSN), 2015 WL 4394958,
at *25 (E.D. Va. July 16, 2015) (analyzing how the revised procedures provide a
letter stating whether or not a person is on the No-Fly List, with the option to
receive and/or submit additional information, however, clarifying that in some
circumstances an unclassified summary of reasons for the individual’s placement
may not be possible).
217. See generally Hu, supra note 12 (arguing that big data blacklisting
harms interfere with and obstruct fundamental liberty interests in a way that
now necessitates an evolution of the existing due process jurisprudence).
218. See id. at 1794 (“The applicability of substantive due process protections
as a vehicle to shield individuals from overreaching and normalized government
dataveillance under newly emerging big data tools remains a complicated and
perhaps wishful potentiality, but one that must be considered.”).
219. See id. (describing how the informational right of privacy is not
necessarily unprecedented, but unestablished and opposed by former Justice
Antonin Scalia and currently serving Justice Clarence Thomas). Professor Hu
also argues that even if the Fourth Amendment was found to apply to cyber
surveillance of law enforcement authorities, it will provide no assistance to
individuals outside the law enforcement context. Id.
The secrecy surrounding the No-Fly List placement criteria
coupled with the public’s inability to effectively challenge its
inability to fly make these redress procedures problematic. The
government admits that it uses “predictive assessments” instead
of hard evidence when determining No-Fly List placement.220
What happened to the No-Fly List placement standard where you
have to be “a known or suspected threat to aviation” to be included?
The United States essentially places people on the No-Fly List
today if they pose a broader threat to national security based on
guess-work of whether a person may or may not commit a crime or
act of terrorism in the future. The secret criteria formulated to
place an individual on the No-Fly List versus the Selectee List also
blurs the distinctions between who should be placed on the No-Fly
List, and who should simply receive the enhanced screening of the
Selectee List. Government agencies continue to participate in
secret predictive judgments to place citizens on the No-Fly List and
this classified analysis poses a high risk of error and a high risk of
constitutional deprivation on the public as a whole—especially for
those citizens who have never been charged or convicted of a
D. Suggestion: Treating No-Fly List Redress Like Criminal
I had to take off my pants, I had to take off my sneakers, then I
had to take off my socks. I was treated like a criminal.
-One of the Robert Johnsons interviewed by “60 Minutes” in
National security concerns do not function as an automatic
blanket justification to treat American citizens as criminals before
220. See Spencer Ackerman, No-Fly List Uses ‘Predictive Assessments’ Instead
of Hard Evidence, US Admits, GUARDIAN (Aug. 10, 2015, 12:51 PM),
https://www.theguardian.com/us-news/2015/aug/10/us-no-fly-list-predictiveassessments (“The Obama administration’s no-fly lists and broader watchlisting
system is based on predicting crimes rather than relying on records of
demonstrated offenses, the government has been forced to admit in court.”).
221. See Choudhury, supra note 204 (suggesting that the Plaintiffs’
reputations were “smeared.”).
222. See Unlikely Terrorists On The No Fly List, supra note 194 (describing
the humiliation endured from mistakenly being placed on the No Fly List).
they commit the crime. Such treatment requires finding probable
cause and providing opportunity for a trial.223 In order for the
NoFly List to succeed in maintaining its important national security
purpose and yet provide proper redress for United States citizens,
some form of hearing or adversarial forum must be accessible to
those citizens who wish to fight for their complete removal from
the List.224 The legislature or the agencies themselves must
formulate a constitutional set of rules and procedures for citizens
to find out why they were put on the No-Fly List, and then allow
citizens the opportunity to present their defense as criminal
It has been suggested that because the No-Fly List does not
involve physical incapacitation and because it serves a
preventative and not a punitive purpose, criminal law procedural
protections do not apply.226 Professor Jennifer C. Daskal counters
this argument and describes the No-Fly List and other restrictions
proliferating over the past decade as “targeted, noncustodial
precrime restraints.”227 She argues that these noncustodial restraints
can so thoroughly constrain an individual’s functioning that they
are equivalent to de facto imprisonment and ought to be treated as
such.228 Professor Margaret Hu suggests that big data programs
operated by the government, such as the No-Fly List, can assign a
223. See Aaron H. Caplan, Nonattainder as a Liberty Interest, 2010 WIS. L.
REV. 1203, 1206 (2010) (stating that it is both proper and desirable for law
enforcement agencies to identify criminal suspects, gather information about
them, and prosecute them if probable cause exists to believe they have committed
224. See Omar, supra note 51, at 271 (describing how the effectiveness of
being placed on the so-called “cleared list” is extremely uncertain).
225. See Mohamed v. Holder, No. 1:11–cv–50 (AJT/MSN), 2015 WL 4394958,
at *17 (E.D. Va. July 16, 2015) (pointing out that when hearings are deferred,
risks of error rise).
226. See Daskal, supra note 38, at 328 (explaining how the restraints are
justified by asserted security needs, based on an assessment that a particular
individual or entity is likely to commit a future bad act).
227. See id. at n.4 (referencing both the story and movie Minority Report,
focusing on the nonpunitive measures that take place outside and on the margins
of the criminal justice system and are designed to prevent future bad acts without
any explicit retributive purpose).
228. See id. at 333 (clarifying that restraints are partial rather than total in
most cases but still significantly diminish one’s capacity to make choices central
to a meaningful life, thus stamping targets as second-class individuals).
heightened suspicion and facilitate inferences of guilt.229 Before
being charged or convicted of a crime, United States citizens are
being forced to relinquish their constitutional rights to travel.230
For those who discover they are on the No-Fly List while abroad,
they find themselves trapped in another country unable to return
to their home in the United States without any realistic or
practical means of returning.231 These selected United States
citizens are essentially being punished for something they have not
been convicted of and, further, have little to no means of seeking
proper due process to defend themselves from such punishment.
The No-Fly List therefore does serve a punitive purpose.232
Selection is punishment in disguise.233 Take for example the
federal lawsuit heard in New York where four Muslims say they
were put on the No-Fly List because they refused to spy for the FBI
and act as government informants.234 Their names were eventually
removed from the List due to their challenge, 235 suggesting
perhaps that the No-Fly List is wrongfully being used as a tool for
intelligence-gathering rather than its intended purpose of
preventing suspected or known threats to aviation from flying.
The Department of Homeland Security and the TSC are
treating United States citizens as criminals,236 and so citizens
should therefore be able to seek redress through procedures akin
to those in a criminal trial. Unlike those agencies collecting
information for the No-Fly List, law enforcement agencies identify
229. See Hu, supra note 12, at 1761 (concluding that these programs may
facilitate the assessment of a “guilty until proven innocent” status).
230. See Mohamed, 2015 WL 4394958, at *12 (noting that the general right of
free movement is a long recognized, fundamental liberty and that the right to
travel, even internationally, cannot be taken from a citizen without due process
231. See id. at *2 (stating that Mohamed argued that his liberty interests, in
being able to return to the United States after travelling abroad, were denied).
232. See Daskal, supra note 38, at 371 (“[W]hat I call pre-crime restraint is
actually ‘punitive prevention’ and ought to be either channeled through the
criminal law or categorically prohibited.”).
233. See Caplan, supra note 223, at 1240 (focusing on selection for the No-Fly
List as punishment).
234. See Lipsey, supra note 193 (suggesting that not becoming an informant
can place a person on the No-Fly List).
235. See id. (noting that the men sued the FBI for damages).
236. See Shamsi, supra note 208 (describing that individuals on the No-Fly
list have often never committed a crime).
criminal suspects, gather information about them, and prosecute
them if probable cause exists to believe they have committed
A specified set of procedures needs to be formulated to ensure
that an individual who seeks redress learns of the exact facts and
circumstances which pertain to her and why the DHS and TSC
“reasonably suspected” that she be deemed a “known or suspected
terrorist”238 and why it was determined that she represents a
threat to aviation and a threat of committing an act of
international or domestic terrorism.239 A United States citizen
must be presented with the “derogatory information” pertaining to
her that caused the TSC to place her in the TSDB, further place
her on the No-Fly List, and prohibit her from boarding a plane
thereby confiscating her constitutional right to travel.240 Because
as it stands currently, persons appearing on the No-Fly “blacklist”
are not treated as suspected wrongdoers, but as confirmed
wrongdoers who face consequences and deprivations as a result.241
Those selected are in fact “guilty until proven innocent,”242 lacking
the ability to adequately and effectively prove innocence.
237. See Caplan, supra note 223, at 1206 (describing the differences between
lists like the No-Fly List and lists of criminal suspects that law enforcement
agencies might legitimately compose as long as the investigation does not exceed
238. Mohamed v. Holder, No. 1:11–cv–50 (AJT/MSN), 2015 WL 4394958, at
*5 (E.D. Va. July 16, 2015).
239. See Hu, supra note 12, at 1787 (stating that the No-Fly List requires a
higher standard than the broader TSDB “reasonable suspicion” standard for
240. See Mohamed, 2015 WL 4394958, at *5 (noting the nature of derogatory
241. See Caplan, supra note 223, at 1206 (describing the No-Fly List as a form
of “blacklist” and stating that “listed person’s freedom is restricted without the
scrutiny of an independent judge and without the approval of a jury.”).
242. See Hu, supra note 12, at 1777 (concluding that big data harms impose
an administratively “guilty until proven innocent” status upon entire classes and
subclasses of individuals in a way that is inconsistent with fundamental liberty
interest protections under substantive due process).
1. A Hearing
The availability of a pre-deprivation hearing would be ideal.
In this scenario, the TSC would issue notice before placement to
those individuals chosen for the No-Fly List. The notice would
inform individuals that unless they chose to seek redress within
an allotted amount of time, placement will be automatic but
redress post-placement would be available after a specified period.
For those who choose to seek redress before placement, an
adversarial setting would function very much like a trial. The
government would come forward and present its case about why
an individual should be placed on the No-Fly List. The individual
would hear all the incriminating evidence and present her
defense.243 A neutral adjudicatory body presiding over the hearing,
preferably a third-party separate from the TSC or DHS, would
then issue a decision.
Although ideal, a pre-deprivation hearing is unrealistic.244
Pre-deprivation notice of No-Fly List placement severely affects
the government’s compelling interest in protecting national
security.245 For example, say an actual terrorist discovers the
TSC’s intention to place her on the No-Fly List before placement
occurs. The terrorist then has a few options. These options include,
but are not limited to: accelerating her plans against the United
States, potentially cutting ties with or tipping off her affiliated
terrorist organization, or potentially fleeing the country to wreak
havoc against the United States abroad.246 Disclosure of potential
placement may also encourage terrorists to take further steps to
avoid detection, destroy evidence, coerce witnesses, alter plans
from what is known by law enforcement or intelligence agencies,
and recruit new members.247 Judicial and agency resources may
243. See Mohamed, 2015 WL 4394958, at *2 (suggesting that derogatory
information is used to place someone on the No-Fly List).
244. See id. at *17 (concluding that the balancing of respective interests did
not weigh in favor of pre-deprivation notice and hearing and are, therefore, not
245. See id. at *10 (“[T]he government’s interest in protecting the safety of
commercial aircraft is compelling.”).
246. See id. at *22 (arguing that disclosure would alert those subjects to the
government’s interest in them and could cause them to attempt to flee, destroy
evidence, or alter their conduct to avoid detection).
247. See Caplan, supra note 223, at 345 (quoting Christopher Piehota, Latif
also play a role considering the sheer amount of estimated names
on the No-Fly List at the present time.248 The availability of a
predeprivation hearing, therefore, is unlikely ever to occur.249 The
balance unduly tips far from the nation’s interest in national
security and places the United States and the public in great
A post-deprivation hearing is the next appropriate option.
Because the courts have recently begun taking on No-Fly List
cases and because the redress procedures in place now are
relatively new, little has been done to allow an individual to
present her defense in court.250 The state secrets privilege may
largely function as the reason.251
A post-deprivation hearing would thus fix this problem, again
functioning like a criminal trial. But how can a person reasonably
defend herself when the government will not share what the
“reasonable suspicion” standard fully entails and what criteria,
facts, and information it used to place someone on the List?252 The
government claims the information concerned is “sensitive
security information,” but if the agencies continue and are
permitted to continue to use this justification to prevent Americans
from defending themselves against prohibition of travel, the
NoFly List will remain a death sentence to liberty with no hope of
v. Holder, No. 3:10-cv-00750-BR 12–13 (D. Or. Nov. 17, 2010)).
248. See Lipsey, supra note 193 (suggesting that more than 47,000 people
were on the No-Fly List as of August 2013).
249. See generally Mohamed v. Holder, No. 1:11–cv–50 (AJT/MSN), 2015 WL
4394958 (E.D. Va. July 16, 2015) (concluding that the constitutionality of the
newly revised procedures cannot be analyzed until Mohamed applies through
250. See id. at *9 (preventing Mohamed from pursing his due process claims
because the procedures were recently revised and Mohamed had to apply in order
for the court to consider their constitutionality).
251. See id. (suggesting the possibility that a claim might be thrown out
completely because of national security concerns).
252. See Latif v. Holder, 28 F. Supp. 3d 1134, 1151 (D. Or. 2014) (stating that
nominations to the TSDB are based on “reasonable suspicion” that requires
“articulable facts which, taken together with rational inferences, reasonably
warrant the determination that an individual meets the substantive derogatory
253. See Latif v. Holder, 969 F.Supp.2d 1293, 1306 (D. Or. 2013) (presenting
the Defendants’ argument that the government is not required to provide an
A detailed set of criteria needs to be formulated and needs to
be accessible to the public.254 The certain, limited amounts of
information that cannot be publicly shared because they pose a
true threat to national security must also be specified to the
nominating agencies.255 When a post-deprivation hearing takes
place, however, an individual must be presented with all of the
information gathered in order to prepare a proper defense.256
Following guidelines similar to the Classified Information
Procedures Act’s (CIPA) § 6(a) Hearing would prove useful in this
endeavor.257 CIPA § 6(b) provides that a defendant in a criminal
case give notice of classified information that is at issue in her case
before a hearing regarding the use, relevance, or admissibility of
classified information that would otherwise be made during the
trial or pretrial proceeding.258 This hearing protects against
harmful disclosures. A confidential hearing modeled after CIPA
would ensure possible “state secrets” are protected, but the
individual facing constitutional deprivation would have to be
presented with the specific facts and incriminating evidence
against her to ensure proper due process.259 Just as the court in
opportunity for Plaintiffs to confront or rebut grounds for No-Fly List inclusion
because confrontation and rebuttal are not absolute requirements for all
government proceedings, especially when highly sensitive information is
254. See Hu, supra note 12, at 1776 (calling the No-Fly List and Terrorist
Watchlist “classified and semi-classified programs.”).
255. See generally United States v. Reynolds, 345 U.S. 1 (1953) (supporting
the notion that national security interests sometimes warrant non-disclosure).
256. See Gete v. Immigration and Naturalization Servs., No. C94-8812, 1999
U.S. Dist. LEXIS 11806, at *11 (W.D. Wash. July 21, 1999).
Owners are furnished with copies of evidence to be used against them,
such as officers' reports detailing the facts upon which the claim of
probable cause is based, would permit them to understand the true
nature of the INS' charges and afford them a fair opportunity to
prepare a . . . defense.
257. See Classified Information Procedures Act, 18 U.S.C.A. APP. 3 § 6(a)
(West 2015) (providing that the United States may request the court to conduct a
hearing to make all determinations concerning the use, relevance, or
admissibility of classified information held in camera).
258. See id. at § 6(b) (distinguishing between whether the United States
previously made the information available to the defendant or did not make the
information previously available).
259. See id. (stating that this hearing is done in camera).
Mohamed stated, the government’s “state secrets” claim was not
enough to bar litigation of the Plaintiff’s case, perhaps further
implicating that the information sometimes claimed “protected”
does not in fact always warrant said protection.260
In the immediate post-9/11 world, the No-Fly List was created
with context in mind and with an aim geared towards preventing
members of al-Qaeda from flying on airplanes.261 In the wake of
the recent Islamic State of Iraq and the Levant (ISIL or ISIS)
crisis, it will be interesting to see how courts deal with new No-Fly
List litigation.262 Will state secrets play a more critical role in
barring litigation now as it did in the post-9/11 era? Or will courts
continue to question the state secrets doctrine and favor individual
liberty interests in allowing such litigation to go forward?263
NoFly List redress, therefore, remains a timely issue. Reorganizing
agency placement and redress processes should be a high priority
in a United States facing serious terrorist threats.
Procedures like those in criminal law, where a person is put
on notice for her potential wrongdoing, serve as opportunities for
citizens to hear and present evidence. Procedures like these must
260. See Mohamed v. Holder, No. 1:11-cv-50 (AJT/MSN), 2015 WL 4394958,
at *3 (E.D. Va. July 16, 2015) (concluding that there was no information protected
from disclosure under the state secrets privilege that was necessary either for
Mohamed to establish liability under his procedural due process claims or for the
Defendants to establish an available defense to that claim).
261. See Caplan, supra note 223, at 1244 (stating that Congress had a good
idea of who it had in mind, as did the agency implementing Congress’s
instructions, suggesting that “persons known to pose a risk to terrorism” is
equivalent to “members of Al Qaeda shall not ride in airplanes.”).
262. See Frida Ghitis, What 2016 Presidential Candidates Can’t Avoid, CNN
(Feb. 16, 2015 4:53 PM),
http://www.cnn.com/2015/02/16/opinion/ghitis-foreignpolicy-2016/ (stating that the next United States president will have to decide how
America will fight ISIS and al Qaeda, the rival terror groups who share an
antimodern, anti-Western ideology backed by brutal terrorist tactics and have killed
thousands of Americans) (on file with the Washington and Lee Journal of Civil
Rights and Social Justice).
263. See Mohamed, 2015 WL 4394958, at *9 (questioning in an Order to the
government why national security considerations should make it undesirable for
United States citizens to receive information concerning their No-Fly List
be made available for those placed on the No-Fly List in fear of
further due process deprivation.264 The No-Fly List is an Executive
Branch-imposed265 restraint on individual liberties, existing in its
current state as an abuse of executive power. Until the legislative
or executive bodies provide the agencies with concrete rules as to
what information must be made available to those seeking redress
for removal from the No-Fly List, the No-Fly List will continue to
serve as an overarching abuse of power against Americans.266
Fifteen years after September 11, 2001, national security
maintains its position as an important American issue.267 National
security, however, does not automatically place higher on the
spectrum of priorities over the liberties and values of the citizens
United States security seeks to protect. It is time to fashion proper
redress for the individuals placed on the No-Fly List to prevent this
automatic national-security-blanket-assumption from taking hold.
II. The Department of Homeland Security's Traveler Redress Program (DHS TRIP), the Old Procedures, and Judicial Dismissal.....................................................239 A. The Old Procedures ................................................... 239 B. District Courts Dismiss No-Fly List Cases in a Post 9/11 World..........................................................241
III. The District Courts Gain Jurisdiction and the New Redress Procedures Are Created ............................243 A . Ibrahim v. Department of Homeland Security..........243 B. Latif v. Holder............................................................ 247 1. The District Court of Oregon's Mathews v. Eldridge Analysis in the No-Fly List Context .............................................248 C. Mokdad v. Lynch .......................................................253 D. The New Procedures..................................................256
IV. The “National Security” Blanket.....................................257 A . Mohamed v. Holder and “State Secrets” ................... 257 B. Core Issues................................................................. 262 C. Analyzing the Constitutionality of the Revised DHS TRIP .................................................... 266 1. Constitutional Rights Affected by No-Fly List Placement ..................................................... 267 1 . United States v. Robel , 389 U.S. 258 , 264 ( 1967 ). 2. See generally World Trade Center Disaster, CNN LIVE (Sept. 11 , 2001 ),
https://www.youtube.com/watch?v=vfYQAPhjwzA ; Flashback 9 /11: As It
Happened , FOX NEWS LIVE (Sept. 11 , 2001 ), http://video.foxnews.com/v/1151
859712001/flashback-911 - as-it-happened/?#sp= show-clips; World Trade Center:
New York City, MSNBC LIVE (Sept. 11 , 2001 ), https://www.youtube.com/
watch?v=OtZKEjr-Sfg; America Under Attack , CNN Live (Sept. 11 , 2001 ),
https://www.youtube.com/watch?v=uU53JlksKQo ; Attack on America, FOX 5
NEWS LIVE (Sept. 11 , 2001 ), https://www.youtube.com/watch? v=SbJ2oA3KSxY
(reporting on the events as they occurred ). 3. See 9 /11 Attacks, HISTORY CHANNEL, http://www.history.com/topics/9- 11 . See generally id. (portraying some information as unclassified with large
chunks of information as redacted , classified information) . 12 . See Margaret Hu, Big Data Blacklisting , 67 FLA. L. REV. 1735 , 1786 - 88 ,
1799 ( 2015 ) (analyzing big data blacklisting programs in her article and
existing due process jurisprudence . ”) . 13 . See id. at 1787 ( citing Peter M. Shane , The Bureaucratic Due Process of
Government Watch Lists , 75 GEO. WASH. L. REV. 804 , 816 - 17 ( 2007 )). 14 . See id. at 1791 (quoting Justice Department Report Tells of Flaws in
Terrorist Watch List , CNN (Sept. 6 , 2007 ), http://www.cnn.com/2007/
US/09/06/terror.watchlist/ ( on file with the Washington and Lee Journal of Civil
Rights and Social Justice) (alteration omitted)) . 15 . See id. (citing Andrea Stone, No Fly List Maintained by FBI Includes
Double the U.S. Citizens Since 2009 , HUFFINGTON POST (June 1, 2012 , 3 :39 PM),
http://www.huffingtonpost.com/ 2012 /06/01/No Fly-list_ n_1563261.html (on file
with the Washington and Lee Journal of Civil Rights and Social Justice)) . 16 . See Know Your Rights: What to Do If You Think You're On A No-Fly List,
ACLU ( 2015 ), https://www.aclu. org/know-your-rights/what-do-if-you-think-
youre-no-fly-list (stating that “the public does not know how many people are on 52. See Mokdad v . Lynch , 804 F.3d 807 , 810 ( 6th Cir . 2015 ) (describing that
doctrine of “inescapable intertwinement.”) . 53 . 49 U.S.C. § 46110 . 54. See Omar, supra note 51 , at 276 (discussing the Green decision and how
claim due to jurisdictional issues). 55. See Green v . Transp . Sec. Admin., 351 F. Supp . 2d 1119 , 1130 (W.D.
Wash . 2005 ) (determining that the TSA's Security Directives that established the
proceed) . 62 . See Ibrahim v. Dep't of Homeland Sec., No. C 06-00545 , 2009 WL
2246194, at *3 ( N.D. Cal . July 27 , 2009 ) (mentioning that exactly what occurred
was not revealed) . 63 . See id. (saying she was allowed to fly to Kuala Lumpur from San 64 . See Latif v. Holder , 28 F. Supp .3d 1134 , 1155 (D. Or . 2014 ) (evaluating
procedural due process challenge) . 89 . See id. (explaining how Plaintiffs alleged that Defendants violated their
violation of the APA) . 90 . See id. at 1163 (concluding that the DHS TRIP process violates
§ 706(2)(A) and § 706(2)(B) of the APA) . 91 . See id. at 1147 (quoting Mathews v . Eldridge , 424 U.S. 319 , 333 ( 1976 )). 92 . See Mathews, 424 U.S. at 335 ( laying out the three-part test to analyze
due process considerations) . 93 . See id. (“[O]ur prior decisions indicate that identification of the specific
will be affected by the official action . ”) . 94 . See id. at 332 (stating that procedural due process imposes constraints
interests within the meaning of the Fifth or Fourteenth Amendments) . 95 . See Dan Lowe, The Flap with No Fly-Does the No Fly List Violate
Privacy and Due Process Constitutional Protections?, 92 U. DET. MERCY L. REV .
157 , 170 ( 2015 ) (delving further into the Fourth Amendment and Privacy Act
issues surrounding the No-Fly List redress procedures ). 103 . See Omar, supra note 51 , at 279 (citing United States v . Guest , 383 U.S.
745 , 757 - 58 ( 1966 ) and Shapiro v . Thompson , 394 U.S. 618 , 629 - 31 ( 1969 ),
recognizing the right to travel to be a fundamental right under the Constitution) . 104 . See id. (citing 49 U .S.C. § 40103(a)(2) (2005), a citizen of the United