The Department of Homeland Security's no-fly list is based on information deemed classified, which the agency does not share with those listed. / Elaine Thompson, AP
A federal judge Tuesday ordered the government to revise its post-Sept. 11 no-fly list, ruling it violates Americans' constitutional rights to travel freely and to effectively challenge being blacklisted because of alleged links to terrorism.
"The court concludes international travel is not a mere convenience or luxury in this modern world. Indeed, for many international travel is a necessary aspect of liberties sacred to members of a free society," wrote U.S. District Court Judge Anna Brown in Portland, Ore. "Accordingly, on this record the court concludes plaintiffs inclusion on the no-fly list constitutes a significant deprivation of their liberty interests in international travel."
She ruled that the Department of Homeland Security's process for challenging inclusion on the list "does not provide a meaningful mechanism for travelers who have been denied boarding to correct erroneous information in the government's terrorism databases."
Thirteen American Muslims, including four military veterans, filed suit in 2010 after they were barred from boarding aircraft to or from the United States because their names were on the secret no-fly list, which is compiled from information deemed classified. All are U.S. citizens or permanent residents, and all have denied any involvement with terrorism, and none was charged with any crime.
All had submitted applications to Homeland Security asking why their names were on the list, but DHS provided no explanations and would not say whether they would be allowed to fly in the future.
In 2011, Brown dismisses the suit on procedural grounds, but a year later she was overruled by the 9th Circuit Court of Appeals, which returned the case to her.
In her 65-page ruling, Brown said DHS must devise a "meaningful procedure" for disclosing how a person ended up on the list, because a traveler "who has not been given any indication of the information that may be in the record does not have any way to correct that information." That, she wrote, violates due process guaranteed by the U.S. Constitution.
The FBI said last year the no-fly contained about 20,000 names, including 500 U.S. citizens.
The American Civil Liberties Union, which brought the case, hailed Brown's "excellent decision," saying it provides "the promise of a way out from a Kafkaesque bureaucracy."
"For years, in the name of national security the government has argued for blanket secrecy and judicial deference to its profoundly unfair No Fly List procedures, and those arguments have now been resoundingly rejected by the court," said Hina Shamsi, the ACLU's national security project director. "Our clients will finally get the due process to which they are entitled under the Constitution."
"We hope this serves as a wake-up call for the government to fix its broken watch-list system, which has swept up so many innocent people," she added.
Several other court challenges have been filed.
In January, a Malaysian university professor was cleared of terrorism charges after being mistakenly placed on the U.S. no-fly list because of a 2005 error by a Transportation Security Administration screener in San Francisco.
Rahinah Ibrahim, who had studied at Stanford University, said she still cannot travel to the United States.
Also In January, a federal judge allowed a Virginia man to continue his challenge to the travel blacklist, three years after he was stranded in Kuwait.
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