NO-FLY LAWSUIT

By William Fisher

Ten American citizens or lawful U.S. residents are suing the government for placing them on the “no-fly” list without notice or due process and then giving them no way to get their names off the list.

The first-of-its-kind lawsuit was filed seeking relief for the plaintiffs who are prohibited from flying to or from the United States or over U.S. airspace because they are on the government's "No Fly List," says the American Civil Liberties Union, which has brought the suit.
None of the individuals in the lawsuit, including a disabled U.S. Marine Corps veteran stranded in Egypt and a U.S. Army veteran stuck in Colombia, have been told why they are on the list or given a chance to clear their names.

"More and more Americans who have done nothing wrong find themselves unable to fly, and in some cases unable to return to the U.S., without any explanation whatsoever from the government," said Ben Wizner, staff attorney with the ACLU National Security Project. "A secret list that deprives people of the right to fly and places them into effective exile without any opportunity to object is both un-American and unconstitutional."

The lawsuit names the U.S. Department of Justice (DOJ), the Federal Bureau of Investigation (FBI), and the Terrorist Screening Center (TSC) in U.S. District Court for the District of Oregon.

The plaintiffs include a U.S. citizen and disabled Marine veteran living in Egypt who has been barred from flying to the United States and, as a result, cannot take a required Veterans' Administration disability evaluation; Raymond Earl Knaeble, a U.S. citizen and U.S. Army veteran who is stuck in Santa Marta, Colombia, after being denied boarding on a flight to the United States; Steven Washburn, a U.S. citizen and U.S. Air Force veteran who was prevented from flying from Europe to the United States or Mexico; he eventually flew to Brazil, from there to Peru, and from there to Mexico, where he was detained and finally escorted across the border by U.S. and Mexican officials; Adama Bah, a citizen of Guinea who was granted political asylum in the United States, where she has lived since she was two, who was barred from flying from New York to Chicago for work; and Halime Sat, a German citizen and lawful permanent resident of the United States who lives in California with her U.S.-citizen husband who was barred from flying from Long Beach, California to Oakland to attend a conference and has since had to cancel plane travel to participate in educational programs and her family reunion in Germany.

According to the ACLU's legal complaint, thousands of people have been added to the "No Fly List" and barred from commercial air travel without any opportunity to learn about or refute the basis for their inclusion on the list. The result is a vast and growing list of individuals who, on the basis of error or innuendo, have been deemed too dangerous to fly but who are too harmless to arrest.

"Without a reasonable way for people to challenge their inclusion on the list, there's no way to keep innocent people off it," said Nusrat Choudhury, a staff attorney with the ACLU National Security Project. "The government's decision to prevent people from flying without giving them a chance to defend themselves has a huge impact on people's lives – including their ability to perform their jobs, see their families and, in the case of U.S. citizens, to return home to the United States from abroad."

The ACLU claims that hundreds of thousands of people are being wrongly identified because of the government’s wasteful and inefficient management of the nation’s one million-strong terrorist watchlist.

The Department of Justice Office of Inspector General (OIG), found that the part of the watchlist maintained by the Federal Bureau of Investigation (FBI) may contain a 35 percent error rate. OIG auditors reviewed 68,669 of those records and found 24,000 out of date. In a closer inspection of the out of date records, the auditors found a majority of this sample did not belong on a watchlist.

The OIG audit also revealed that large portions of the list are governed by no formal processes for updating or removing records.

The ACLU says the audit “confirms that the nation’s watchlist system is massively broken.”

The list has been substantially expanded following the unsuccessful effort by a Nigerian with explosives in his underwear to blow up a passenger airliner approaching Detroit last Christmas day.

“I am a bit skeptical about claims the FBI addressed all of the concerns and problems raised in the FBI Inspector General’s audit report on the terrorist watchlist,” Chris Calabrese, an attorney with the ACLU Technology and Liberty Project, told IPS.

“Are they saying that the FBI has reviewed 24,000 watchlist records to determine how many (likely a majority) need to be removed from the watchlist? Has the FBI completely streamlined a process for reviewing records so that people are removed from the watchlist within 10 days? The audit reports the average amount of time to remove an identity from the list is 60 days. And this is just the tip of the iceberg.”

The OIG report documents a widespread failure to scrub the lists by removing names after cases have been closed. For example, one subject stayed on the watchlist for almost five years after the case was resolved; two people on the list were dead. The FBI attempted to place one individual on the watchlist by reclassifying that person as an international terrorist after already having been cleared of wrongdoing by an FBI investigation.

It identified more than 50,000 records with no explanation of why they were on the list, making it impossible to remove them. It described the controls for placing many names on the list as “weak or nonexistent.”

The watchlist has existed since 2003, when then President George W. Bush issued a presidential directive mandating the development of a consolidated terrorist watchlist and required all federal law enforcement and intelligence agencies with terrorism information to share such information. The consolidated terrorist watchlist is known as the Terrorist Screening Database (TSDB).

“This IG report reveals just what a comedy of errors the watchlist is,” said Chris Calabrese, attorney with the ACLU Technology and Liberty Program. “But we did not need this report to know there is a problem with the effectiveness of any terrorist watchlist that includes over a million names. It certainly explains why civil rights icon Congressman John Lewis has problems when he needs to fly.”

The late Senator Edward M. Kennedy experienced similar problems.