Second judge finds “no-fly” orders may violate due process and right to travel

In another victory for due process and the right to travel, Judge Anthony J. Trenga of the US District Court for the Eastern District of Virginia in Alexandria, today rejected another government motion to dismiss a complaint challenging the US “no-fly” list. At least as long as Judge Alsup’s decision in Ibrahim v. DHS remains secret, today’s ruling in the case of Mohamed v. Holder contains the strongest and clearest affirmation of the right to travel in any judicial opinion in the US since 9/11, and clears the way for what would be only the second trial (despite many years of litigation) in a no-fly case.

Gulet Mohamed is a poster-child for everything that’s wrong with the system of “no-fly” orders, and one of dozens of victims of similar mistreatment and extrajudicial exile from the US. Raised in the US, and a US citizen, Mr. Mohamed was a teenager visiting family abroad in 2011 when he was placed on the US no-fly list, apparently in an effort to induce him to become an FBI informer on the Somali-American community. Unable to return home to the US, he was arrested and imprisoned in Kuwait for overstaying his visa.  While being held incommunicado and blindfolded in Kuwait, he “was repeatedly beaten and tortured by his interrogators,” one of whom spoke “perfect American English.”

Eventually — either because Mr. Mohamed’s Kuwaiti captors decided he was telling the truth when he said he knew nothing about terrorists, or because he had smuggled out a message to his family in the US, who had gotten him a lawyer — they let him buy a plane ticket home, and tried to deport him. But the airline wouldn’t let him on the plane to the US, saying that they were acting on orders from the US government.

Mr. Mohamed was allowed to come home only after his lawyer in the US, Gadeir Abbas of the Council on American-Islamic Relations (CAIR), filed a federal lawsuit on his behalf.

Once Mr. Mohamed was home, of course, the US government tried to argue that the case was “moot”, notwithstanding the fact that Mr. Mohamed couldn’t tell whether he would ever again be allowed to fly.

After three years of technical arguments about standing, jurisdictions, and so forth were rejected by the trial judge and finally last year by the 4th Circuit Court of Appeals, the government made a new round of objections as to whether Mr. Mohamed’s compliant, even if true, stated a claim that would entitle him to any judicial relief.

That motion by the government was denied today.  While Judge Trenga didn’t rule on the truth of the allegations in Mr. Mohamed’s complaint, the judge found that, if true, these allegations could provide a sufficient basis for findings of violations of Mr. Mohamed’s Constitutional rights.

The ruling is worth reading in its entirety. Here are some excerpts:

The impact on a citizen who cannot use a commercial aircraft is profound. He is restricted in his practical ability to travel substantial distances within a short period of time, and the inability to fly to a significant extent defines the geographical area in which he may live his life. As a practical matter, an affected person is restricted in his ability to visit family and friends located in relatively distant areas of the country or abroad, which through flight can be reached within a matter of hours but would otherwise take days, if not weeks, to access. See Latifv. Holder, No. 3:10-cv-750,2013 WL 4592515, at ¶8 (D. Or. Aug. 28, 2013) (noting that flight is often the only feasible form of international travel); Ibrahim v. Dep ‘t of Homeland Sec, No. C 06-00545 WHA, 2012 WL 6652362, at ¶7 (N.D. Cal. Dec. 20, 2012) (same). An inability to travel by air also restricts one’s ability to associate more generally, and effectively limits educational, employment and professional opportunities. It is difficult to think of many job categories of any substance where an inability to fly would not affect the prospects for employment or advancement; one need only reflect on how an employer would view the desirability of an employee who could not travel by air. An inability to fly likewise affects the possibility of recreational and religious travel, given the time periods usually available to people, particularly those who are employed.

Inclusion on the No Fly List also labels an American citizen a disloyal American who is capable of, and disposed toward committing, war crimes, and one can easily imagine the broad range of consequences that might be visited upon such a person if that stigmatizing designation were known by the general public. In effect, placement on the No Fly List is life defining and life restricting across a broad range of constitutionally protected activities and aspirations; and a No Fly List designation transforms a person into a second class citizen, or worse. The issue, then, is whether and under what circumstances the government should have the ability to impose such a disability on an American citizen, who should make any such decision, according to what process, and by what standard of proof.

After a review of the legal history of the right to travel and its importance, Judge Trenga turns to the Constitutional aspects of the specific right to travel by air and the functioning of the “no-fly” list:

[W]hen the basic principles discussed in Kent and Aptheker are applied to the No Fly List, substantial constitutional issues are immediately apparent.

First, the No Fly List, once distributed, clearly infringes upon a citizen’s right to travel; and the Court cannot conclude based on the present record that there are no means less restrictive than an unqualified flight ban to adequately assure flight security, such as comprehensive pre-flight screening and searches. Second, the current record is inadequate to explain why judicial involvement before a person is placed on the No Fly List is either unnecessary or impractical, other than perhaps within the context of an emergency based on a specific, imminent threat that requires immediate action. Nor does the record conclusively establish that there cannot be any opportunity, either before or after an American citizen is placed on the No Fly List, to know of or challenge any of the information used to list him, even where such information could be summarized in a way that does not compromise sources or methods.

We’ve always believed that no-fly orders should come from the courts, through existing routine legal procedures (which the DHS has never attempted to use) for the issuance of temporary restraining orders or permanent injunctions. So far as we know, however, this is the first time any judge has suggested the possibility of judicial no-fly orders rather than judicial review of extrajudicial administrative no-fly orders. And this also the first time, so far as we know, that any judge has questioned not just how a no-fly list should work, but whether such a total ban on travel (by people who the police do not have grounds to arrest) is necessary at all.

The ruling continues:

Third, substantial issues exist concerning the standards used, or required to be used, to determine whether an American citizen can be banned from flying. The process of nomination to the No Fly List is based on a suspected level of future dangerousness that is not necessarily related to any unlawful conduct. In that connection, the T[errorist] S[creening] C[enter]’s] currently applied standard for inclusion is “satisfaction of a certain substantive derogatory criteria establishing that the individual may be a known or suspected terrorist.” Piehota Decl., ¶12. And “[w]hether the individual satisfies the substantive derogatory criteria is generally based on whether there is reasonable suspicion to believe that a person is a known or suspected terrorist.” Id. While determining whether a person is a “known terrorist” appears to be straightforward and based on certain formal actions taken within the criminal justice system,14 whether a person is a “suspected terrorist” appears to be based to a large extent on subjective judgments. As the defendants explain, “[a] suspected terrorist is an individual who is reasonably suspected to be, or have been, engaged in conduct constituting, in preparation for, in aid of, or related to terrorism and terrorist activities based on articulable and reasonable suspicion.” Piehota Decl., n.5 (emphasis added). In other words, an American citizen can find himself labeled a suspected terrorist because of a “reasonable suspicion” based on a “reasonable suspicion.”

What constitutes conduct sufficiently “related to” or “in aid of terrorism is not explained, but it is not difficult to imagine completely innocent conduct serving as the starting point for a string of subjective, speculative inferences that result in a person’s inclusion on the No Fly List. For example, is the academic study of terrorism or the investigative reporting of terrorist activities “related to terrorism and terrorist activities”? Is providing financial support to a charitable organization enough, even without knowledge that some of the organization’s activities are “in aid of… terrorist activities”? Is it enough to be a member of a lawfully operating social or religious organization whose membership may include other persons suspected of terrorism? Is studying Arabic abroad, as Mohamed concedes he did, conduct “in preparation for … terrorist activities”? A showing of past or ongoing unlawful conduct does not seem to be required, and the level of proof required for inclusion on the No Fly List appears to be far less than that required to obtain such law enforcement tools as a search or arrest warrant or a thirty-day wiretap. See U.S. Const, amend. IV; 50 U.S.C. § 1805(a)(2). But the Court has little, if any, ability to articulate what information is viewed by the TSC as sufficiently “derogatory” beyond the labels it has provided the Court.

In sum, the No Fly List assumes that there are some American citizens who are simply too dangerous to be permitted to fly, no matter the level of pre-flight screening or on-flight surveillance and restraint, even though those citizens cannot legally be arrested, detained, or otherwise restricted in their movements or conduct. The No Fly List also assumes that in order to achieve its intended purpose, it must be compiled and distributed without any judicial review or involvement and without any opportunity for the citizen to learn of or contest the accuracy of any information used to justify his inclusion on the list. Specifically at issue in this case is whether, given the substantial liberty interest in freedom of movement possessed by every citizen, the No Fly List, as applied to American citizens, comports with the requirements of substantive and procedural due process.

Judge Trenga distinguished this case from the decision of the 6th Circuit last year in the case of Julia Shearson, which found that Ms. Shearson (whose case had survived an earlier appeal to the 6th Circuit) would have to “exhaust her administrative remedies” through the DHS Traveler Redress Inquiry Program (TRIP) before she could seek relief from the court:

[I]t is difficult to see how exhaustion of DHS TRIP would significantly assist the Court in adjudicating or resolving Mohamed’s claims. Mohamed would not have access to any information the government used to place him on the No Fly List, and once the government completed the review, he would receive only a letter indicating that the review process was complete. He would not receive any substantive information as to whether he was, or ever had been, on the No Fly List, or the grounds for his potential inclusion on the list. For these reasons, Mohamed would not have any opportunity to respond to the information used by the government to place him on the No Fly List; and it is not even clear whether he would have any meaningful opportunity to submit and have considered information that might negate any “derogatory information” possessed by the government, even without access to the government’s reasons for his inclusion on the No Fly List.

Moreover, DHS TRIP would not provide Mohamed with any opportunity to present and have considered his constitutional claims. That process addresses only whether a traveler who has submitted an inquiry is in fact the individual listed in the TSDB, and if so, whether there is sufficient information to support the listing. As a result, at the end of the DHS TRIP process, even were the TSC to voluntarily remove Mohamed from the No Fly List, the alleged underlying constitutional infirmities that allowed his name to be included on the list and distributed to airlines would remain in place, unreviewed and with no assurances that Mohamed would not suffer the same alleged injury in the future. In other words, the administrative process that the defendants want exhausted would not address Mohamed’s constitutional claims.

Finally, the Court has no expectation that the DHS TRIP process would create a record more helpful than the one that already exists. According to the government, if Mohamed is on the No Fly List, there already exists for the Court’s review an administrative file containing the “derogatory information” the TSC relied upon in placing him on the list. See Piehota Decl., ¶9. There is also no reason to think that the DHS TRIP process would develop any of the additional factual record relevant for the purposes of Mohamed’s constitutional claims, given the limited scope of the issues addressed in DHS TRIP.

Judge Trenga also rejected some of the government’s more strained arguments, such as that a no-fly order doesn’t really interfere with the right to travel (because other means of intercontinental travel, such as boats, might be available), and that the “right to return” to the country only guarantees the right to step across the border once one reaches it, not the right to approach the border:

Central to the defendants’ defense of the No Fly List is their contention that there is no fundamental right to the most convenient form of travel. See Memorandum in Support at 18-19 (citing, e.g., Gilmore v. Gonzales, 435 F.3d 1125,1136-37 (9th Cir. 2006) (holding that airline policy requiring identification to fly did not unreasonably burden right to interstate travel); Miller v. Reed, 176 F.3d 1202, 1205-1206 (9th Cir. 1999) (indicating that there is no fundamental right to drive); Cramer v. Skinner, 931 F.2d 1020, 1031 (5th Cir. 1991) (”Minor restrictions on travel simply do not amount to the denial of a fundamental right that can be upheld only if the Government has a compelling justification.”). As discussed above, the constitutional issues presented by the No Fly List, as it applies to American citizens, go far beyond any claimed right to travel by the most convenient means. In any event, in none of the cases the defendants cite was the plaintiff deprived entirely of the right to travel by air. See Gilmore, 435 F.3d at 1137 (challenge to identification policy requiring airline passengers to present identification or be subjected to more extensive searches); Cramer, 931 F.2d at 1029-33 (challenge to law that restricted interstate air service from a particular airport); City of Houston v. FAA, 679 F.2d 1184, 1198 (5th Cir. 1982) (challenge to regulations prohibiting air carriers from operating nonstop flights between Washington National Airport and any airport more than 1,000 miles away)….

In Count I, styled “Violation of U.S. Citizen’s Right to Reside in United States and to Reenter the United States from Abroad,” Mohamed alleges that, “[b]y placing [him] on the No Fly List while he was abroad, Defendants Unknown TSC Agents prevented [him] from boarding an aircraft to return to the United States, even though no other means existed by which he may return to the United States, thus violating [his] constitutional rights.” Third Amend. Compl. ¶56. Further, Mohamed alleges that, by maintaining him on the No Fly List, the defendants have “substantially burdened his fundamental right to return to the United States in the immediate future.” Id. ¶57. Count I is, in essence, a substantive due process claim….

The defendants do not contest that a United States citizen has a right to reenter the United States. They contend, however, that Count I must fail because the right of reentry attaches only once a citizen presents himself at a U.S. port of entry and does not extend to restrictions that may prevent or impede his ability to reach a U.S. port of entry. Based on this position, the defendants contend that, as a matter of law, based on his allegations, Mohamed has never been denied reentry to the United States, and that, even if he is on the No Fly List, Mohamed will not in the future be denied reentry once he presents himself at the border. The Court concludes that a U.S. citizen’s right to reenter the United States entails more than simply the right to step over the border after having arrived there. See, e.g., Newton v. INS, 736 F.2d 336, 343 (6th Cir. 1984) (noting that citizens “have the right to return to this country at any time of their liking” (emphasis added)). At some point, governmental actions taken to future cross over into an unconstitutional burden on that right of reentry.

Again, none of the factual disputes have yet been resolved. We expect that the next phase of this case, as it moves toward trial, will be about government claims of “secrecy”: what evidence will be allowed, and which of that evidence will be kept secret form the plaintiff, his lawyers, and/or the public.

One Response to “Second judge finds “no-fly” orders may violate due process and right to travel”

  1. Papers, Please! » Blog Archive » UN Human Rights Committee review of US implementation of the ICCPR: Day 1 Says:

    [...] US borders. Eggregious recent examples of violations of this right by the US include US citizens Gulet Mohamed (placed on the “no-fly” list while visiting family abroad as a teenager, and detained [...]

Leave a Reply