Gotta Fly: How to Fix Wrongful Inclusion in the “No-Fly List”

By Attorneys Eric R. Welsh & Nancy E. Miller

Air travel is an easy target for comedy: basic human comforts like leg room and blankets become impossible luxuries, food (when it is offered at all) makes fasting seem pleasurable, and security checkpoints are an experience in and of themselves.  Still, these common inconveniences are nothing compared to the difficulties faced by persons who are wrongly included in the U.S. government’s secret “No-Fly List.”  One only learns that he or she is mistakenly included in a no-fly list by attempting to board a plane.  The airline or a TSA agent might take the person out of line for “enhanced screening.”
Handcuffs come out.  In front of family, friends, and a crowd of strangers, the person is led away for interrogation by a Homeland Security officer.  The word “terrorist” is used, or more likely, no explanation is provided.  The person might be denied the right to board the plane, or subjected to humiliating and degrading treatment and significant delays.  Although this person may be perfectly innocent and may pose no security threat, air travel becomes impossible, or so fraught with embarrassment and delay that it is avoided whenever possible.  
Recently, however, the federal courts have recognized the constitutional rights of travelers, and in a series of cases forming an emerging body of law, have taken aim at the bureaucratic terrorist watch list program that has, in the name of safety, dramatically damaged numerous innocent lives.     
Since 2001, the U.S. government has amassed several watch lists of persons suspected of posing some alleged risk to national security.  Currently, there are at least eight such lists maintained under the umbrella of the Terrorist Screening Database (TSDB), colloquially knows as the “No-Fly List.”  Various federal agencies (including the FBI, Homeland Security, and the Department of State) contribute to and draw information from the No-Fly List.  “Derogatory information” that is heavily classified may trigger the addition of a name to the list.  In many cases, this can result from a mistake in identity or a clerical error.  Sadly, an internal accountability report found that half of tens of thousands of the names on the No-Fly List from 2003 to 2006 were misidentifications.  The Terrorist Screening Center (TSC), the multi-agency organization that manages the No-Fly List, has admitted that an astonishing 45% of the records related to complaints made by travelers seeking redress were incomplete, inaccurate or out-of-date.  
Once a name appears on a “No-Fly List,” getting that name removed can be a nightmare.  The DHS complaint system—known as the “Traveler Redress Inquiry Program” or “DHS TRIP”—permits the traveler to describe specific instances involving travel delays and mistreatment.  Often, DHS TRIP’s response consists of a form letter stating that it can “neither confirm nor deny” whether the person is actually included in a watch list, and disclaiming any ability to ensure worry-free or delay-free travel.  In the vast majority of cases, this form response provides no comfort, and alleviates none of the frustrations and humiliations encountered by the wrongly-listed traveler.  
The Ninth Circuit Court of Appeals has found that challenges to wrongful inclusion in the No-Fly List can—and should—be brought in United States District Court.  In district court, a plaintiff claiming wrongful inclusion can raise a host of constitutional claims, and take advantage of a range of discovery tools such as depositions and interrogatories that are not available in the circuit courts.  Moreover, at least one District Court judge has found that the government cannot avoid providing relevant information by claiming state security.          
In Ibrahim v. Dep’t of Homeland Security, U.S. District Court Judge William Alsup unsealed an order clearing the name of a Malaysian woman from the No-Fly List.  After surviving multiple attempts on the part of the government to dismiss the case, and overcoming the government’s aggressive refusal to produce information on a claim of national security, the plaintiff finally discovered that her name had been added to the No-Fly List due to the error of an FBI agent who misunderstood the directions on a form and checked the wrong box.  As a result of this careless error, she was refused travel, handcuffed at the airport in front of her 14-year-old daughter, and had her student visa revoked.  She has at last been vindicated.  As Judge Alsup made clear, the government cannot simply hide behind secret antiterrorism polices and must correct its mistakes.  
If you believe you may be wrongly included in the “No-Fly List,” or have repeatedly encountered unexplained delays when traveling by air, you are advised to consult with an experienced attorney who can litigate on your behalf to protect your constitutional rights.