Court to Weigh Judicial Approval of “No Fly” Cases

In a pending lawsuit challenging the constitutionality of the “no fly” list, in which the government has asserted the state secrets privilege, a federal court signaled that it would consider requiring judicial approval of “no fly” determinations involving U.S. citizens.

Judge Anthony J. Trenga, who presides over the case Gulet Mohamed v. Eric Holder in the Eastern District of Virginia, set a hearing on February 24 to allow the government to supplement its argument that the case must be dismissed on state secrets grounds. Judge Trenga has previously rejected government arguments that state secrets required dismissal of the case and concluded the case could proceed without the assertedly privileged documents. (Secrecy News, 10/31/14).

In a February 2 order, he told the government to be prepared to explain “how the under seal documents as to which the state secrets privilege is claimed preclude adjudication of the procedural due process claims without their use and disclosure.”

Beyond that, however, Judge Trenga hinted at a possible remedy to the constitutional challenge before the court involving independent judicial review of “no fly” determinations.

He asked the government to address “whether, and if so how, national security considerations make it impractical or otherwise 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.”

The upcoming hearing will be closed and ex parte.

“No Fly” List to Offer Increased Transparency

The “no fly” list procedures that are used to prevent individuals who may present a security hazard from flying on commercial aircraft are being revised to make them more transparent and easier to challenge, government attorneys said Friday. They asked a court to suspend a lawsuit disputing the constitutionality of the “no fly” procedures for two months until the revisions are complete.

“The Government… is currently reviewing and revising the administrative redress procedures for denials of boarding,” Justice Department attorneys said in a November 14 memorandum in support of a motion for a stay of proceedings in the lawsuit Gulet Mohamed v. Eric Holder.

“The Government is revising current redress procedures to increase transparency of the process for certain persons denied boarding on commercial aircraft,” the memorandum said.

The government had previously sought dismissal of the entire Gulet Mohamed case on state secrets grounds. That move was rejected by the court. (Secrecy News, October 31.)

The revised “no fly” procedures are expected to be completed and available by January 16, 2015.

Revisions to the “no fly” procedures were initiated in response to another pending lawsuit, Ayman Latif v. Holder, in which the court directed the government to “fashion new procedures that provide Plaintiffs with the requisite due process….”

In response, attorneys in the Latif case said, “the Government will endeavor to increase transparency for certain individuals denied boarding who believe they are on the No Fly List and have submitted DHS TRIP [Traveler Redress Inquiry Program] inquiries, consistent with the protection of national security and national security information, as well as transportation security.” (Their remarks were presented in a status report appended to the new motion for a stay).

With respect to the Gulet Mohamed case, the government said that “Plaintiff’s procedural due process claim will be directly impacted–and potentially mooted–by the Government’s revision of its redress procedures, the exact procedures that Plaintiff alleges to be constitutionally inadequate.”

“For an individual who is on the No Fly List, the development of new procedures may affect the universe of information relied upon in support of the placement decision, or even the placement decision itself. In this way, the revised procedures could affect the nature of the legal claims to be resolved. Moreover, once the revised procedures are in place, Plaintiff’s claims may be moot or, at the least, in need of reformulation should he decide to continue litigating the case.”

“In these circumstances, a stay is appropriate because the revised redress procedures may affect the Government’s need to rely on information subject to the assertion of the state secrets privilege or the need to move again for dismissal,” the November 14 memorandum said.

Attorneys for plaintiff Gulet Mohamed oppose the government motion for a stay, which will be considered by the court at a November 24 hearing. [Update 11/19/14: The court said it would consider the matter without a hearing.]

Related issues were discussed by the Congressional Research Service in “The No Fly List: Procedural Due Process and Hurdles to Litigation,” September 18, 2014.

As of December 2013, there were 47,000 people on the no-fly list, including 800 Americans, the Washington Post reported (“More than 1 million people are listed in U.S. terrorism database” by Adam Goldman, August 5, 2014).