No fly list gets another judicial berating


I reported earlier about a federal judge who had slapped down the government over the way they abused their no-fly lists to harass people who had little or no recourse, because they were not told they were on the list or how they could get off it.

The ACLU reports that now another judge has reprimanded the government about the same issue, this time in the case of Gulet Mohamed (whose case I wrote about three years ago.)

In another ruling issued on January 22, 2014, U.S. District Judge Anthony Trenga rejected the government’s request to dismiss a case brought by Gulet Mohamed, a U.S. citizen who alleges that he was prevented from returning to the United States from Kuwait because he appeared on the No Fly List, and that he was subsequently subjected to beatings and mistreatment while in detention in Kuwait.

Judge Trenga was unsparing in describing the consequences of inclusion on the No Fly List: “The impact on a citizen who cannot use a commercial aircraft is profound,” he wrote, and “placement on the No Fly List is life defining and life restricting across a range of constitutionally protected activities and aspirations.” In short, in Judge Trenga’s words, “a No Fly List designation transforms a person into a second class citizen, or worse.”

Judge Trenga echoed — and cited to — the judge’s decision in the ACLU’s lawsuit, which we filed in June 2010 on behalf of 13 U.S. citizens, including four military veterans, who were barred from flying to, from, or within the United States because of their apparent placement on the No Fly List. In our case, the judge added that “[t]he realistic implications of being on the No Fly List are potentially far-reaching,” and can prevent a listed person from traveling by air, sea, or land.

Gulet Mohamed’s situation provided a textbook case of the problems with the list.

The government has refused to say why it would have placed Mohamed on the no-fly list; in fact, the government won’t even confirm that Mohamed, or anyone else, is on the list at all. The government says only that people are placed on the list when it has “reasonable suspicion to believe that a person is a known or suspected terrorist.”

Trenga wrote that a citizen’s right to due process should provide a meaningful opportunity to challenge the government’s rationale for placement on the list.

Mohamed, an Alexandria resident and naturalized U.S. citizen, was 19 when he was detained by Kuwaiti authorities in 2011. Mohamed says he was beaten and interrogated at the behest of the U.S. and denied the right to fly home.

U.S. authorities allowed Mohamed to fly home after he filed a federal lawsuit, but Mohamed says he remains on the list without justification.

You can read judge Trenga’s order here. This ruling rejected a procedural hurdle thrown up by the government. The ruling on the actual case is due shortly.

Comments

  1. kyoseki says

    New Jersey codified a law last year that prevents people on the Terrorist Watch List from being able to purchase firearms, which sets a worrying precedent.

    What other Constitutionally protected rights can you attempt to end around by using anti Terrorism on a person by person basis?

    Presumably the 4th Amendment goes right out the window, clearly potential terrorists can’t be allowed to be secure in their home or person (naturally, this is over and above the constant violations of the 4th amendment on a national level that seem to be the primary role of certain government agencies).

    5th Amendment too, I would hazard, just classify someone as an enemy combatant and they’re guilty until proven innocent.

    Maybe we should throw out the free assembly clause of the 1st Amendment as well, since we don’t want them around crowds.

    I doubt New Jersey’s law will survive a Constitutional challenge, but unfortunately it takes a lot less time to enact this kind of thing than it does to repeal it.

  2. Paul Jarc says

    “reasonable suspicion to believe that a person is a known or suspected terrorist.”

    This is cleverly vacuous—I can suspect anyone of being a terrorist (even unreasonably), and once I declare my suspicion, everyone else has reasonable suspicion to believe that the person is a suspected terrorist.

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