Fight, Not Flight

PORTLAND’S FEDERAL COURT has become the battleground for a major lawsuit that will impact civil liberties, national safety, and that ritual every American dreads: airport security.

The American Civil Liberties Union (ACLU) faced off against federal lawyers on Friday, January 21, in downtown Portland at the first hearing of its case claiming that the government’s “No Fly List” is unconstitutional.

On behalf of 10 US citizens and permanent residents, including Portlander Mohamed Sheikh Abdirahman Kariye, the ACLU alleges that the “No Fly List” violates the right of due process because the government does not tell people whether they’ve been placed on the list, why they’re suspect, or provide an adequate way to get someone’s name off.

ACLU attorney Ben Wizner explained that his team chose to file in Portland in part because it’s where Kariye is from, but also because they hope the Ninth Circuit Court of Appeals (which covers the West Coast) will give the case a fairer shake than other circuits.

“This is the most important case to date that asks the court to answer this question: Can the government put someone on a secret list, not tell them that they’re on this secret list, not tell them why they’re on this secret list, and not give them any process to object to being on the list?” Wizner told reporters from the steps of the federal courthouse on Friday afternoon.

Judge Anna Brown’s wood-paneled courtroom on the 14th floor of Portland’s federal courthouse was packed for the case’s first argument. Though this first day in court revolved around a not-so-riveting debate over jurisdiction, over 50 people, most of them Muslim men, filled the courtroom’s wooden pews, took up seats along the back wall, and even crouched in the aisle while the judge ripped into each side’s arguments.

Unlike many people on the No Fly List, the government has publicly accused Kariye of terrorism—though he has never been convicted of any terrorism-related crime. In 2003, the FBI said Kariye helped raise $12,000 to aid the Portland Seven, a local group of Muslim men convicted of trying to travel to Afghanistan to aid al-Qaeda.

In the case against the No Fly List, the ACLU is demanding the FBI and Transportation Security Administration set up a better process for allowing people like Kariye to appeal their inclusion on the list.

Department of Justice attorneys argued that there is already a complaint process, which is run through a website called DHS TRIP. People who are turned away from flights can petition through the website to find out whether they’re on the No Fly List, and receive a letter in return. The letter says their request was received and action may have been taken—but it does not say whether they’ve been taken off the list, or even if they were on it to begin with.

The ACLU and its petitioners instead want a system where someone who’s turned away from boarding a plane can hear the charges against them—either in front of a court or through a federal agency—and have a chance to argue them.

The list itself is secret. The Terrorist Screening Center, an agency run by the FBI, began compiling the list in 2003, but won’t release the names of people on the list or even the number of people who are on it. Individuals whose names are on the list—or identical to a name on the list—are singled out for extra security at airports and often not allowed to fly. A government audit in 2007 revealed there were 71,872 names on the No Fly List and recommended reducing that number to 34,230 names. In addition to all the names that shouldn’t be on the list, the audit found 20 names that should have been on the list, but weren’t.

Nothing was resolved in Friday’s hearing—the case will drag on at a glacial pace, with the next round of arguments most likely in June. Until then, tens of thousands of Americans—including Kariye—will be left wondering whether they’re a suspect of the government, and if so, why.