No Fly List: Govt Offers New Redress Procedures

Updated below

The government will no longer refuse to confirm or deny that persons who are prevented from boarding commercial aircraft have been placed on the “No Fly List,” and such persons will have new opportunities to challenge the denial of boarding, the Department of Justice announced yesterday in a court filing.

Until now, the Government refused to acknowledge whether or not an individual traveler had been placed on the No Fly List and, if so, what the basis for such a designation was. That is no longer the case, the new court filing said:

“Under the previous redress procedures, individuals who had submitted inquiries to DHS TRIP [the Department of Homeland Security Traveler Redress Inquiry Program] generally received a letter responding to their inquiry that neither confirmed nor denied their No Fly status.”

“Under the newly revised procedures, a U.S. person who purchases a ticket, is denied boarding at the airport, subsequently applies for redress through DHS TRIP about the denial of boarding, and is on the No Fly List after a redress review, will now receive a letter providing his or her status on the No Fly List and the option to receive and/or submit additional information.”

If the individual traveler chooses to pursue the matter, DHS “will provide a second, more detailed response. This second letter will identify the specific criterion under which the individual has been placed on the No Fly List and will include an unclassified summary of information supporting the individual’s No Fly List status, to the extent feasible, consistent with the national security and law enforcement interests at stake.”

The new redress procedures were developed in response to legal challenges to the No Fly List procedures, which argued that the procedures were constitutionally deficient or otherwise improper. The notice of the new procedures was filed yesterday in the pending lawsuit Gulet Mohamed v. Eric H. Holder, Jr., which is one of the ongoing lawsuits over the No Fly List.

“A number of travelers who dispute any connection to terrorism have alleged that they have been denied boarding on commercial aircraft,” a recent Congressional Research Service report noted. “A denial of entry can occur, for example, when a person’s name and/or date of birth correspond or are similar to the identity of someone in the government’s watchlist database.”

The CRS report, which predates the newly announced procedures, reviewed many of the legal issues involved. See The No Fly List: Procedural Due Process and Hurdles to Litigation, April 2, 2015.

Update: DHS TRIP has received and processed more than 185,000 redress requests and inquiries — regarding enhanced screening, delays, or denials of boarding — since 2007, DHS told the House Homeland Security Committee in a September 2014 hearing.

Update 2: A similar notice regarding changes in the No Fly List redress procedures was filed in several other pending lawsuits, including Latif v. Holder, in which a court found the previous process unconstitutional. In its filing in that case, the Justice Department added: “The Government will be closely monitoring the initial implementation of these newly revised procedures on an interagency basis, and will, as circumstances warrant, consider whether further revisions to the process are necessary. The revised procedures will be discussed in more depth in Defendants’ upcoming summary judgment briefing.”