Legal Remedies for Wrongful Inclusion in the Government’s Secret “No-Fly List”

By Attorneys Robert L. Reeves and Eric R. Welsh

Air travel in post-9/11 America is not easy for any of us, but for persons who have been wrongly included in the government’s “No-Fly List,” flying can be humiliating, degrading, and on some occasions, impossible.  In the wake of the September 11, 2001 terrorist attacks against the United States, the Bush Administration (and, generally, the federal government) made a series of decisions that favored the immediate security interests of the United States over traditional notions of privacy and personal liberty. 

The U.S. intelligence agencies, including the then-newly-created Department of Homeland Security (DHS), began drastically expanding various terrorist and criminal “watchlists” that the agencies had used to monitor and track the activities of potential terrorists.  Hundreds of names were added to the “No-Fly List,” a name which refers to a body of lists maintained and disseminated among the intelligence agencies, and shared with airlines and law enforcement agencies.

Each year, this “No-Fly List” continues to grow, and today, thousands if not tens of thousands of Americans appear on this list.  In an overly zealous attempt to throw a wide net to catch potential terrorists, the lists have expanded beyond the point of reason to include thousands of ordinary, innocent citizens and permanent residents, many of whom are included due to misidentification or mistake. 

Once on the list, the traveler will encounter frustrations such as hours-long inspections at international borders (regardless of whether the traveler is a U.S. citizen); the inability to print e-tickets; extensive bag checks; and, in some instances, the refusal of an airline to issue a boarding pass.  Innocent travelers with no criminal or terrorist ties have been subjected to humiliating interrogations about their religious beliefs, clothing, affiliations, and family members, simply because their names appeared on a list.  Once a name appears on a “No-Fly List,” getting the name removed can be an ordeal.  Fortunately, there are legal remedies available.    

The DHSy (which oversees the Transportation Security Administration) provides travelers with the opportunity to submit a complaint regarding wrongful inclusion in a terrorist watchlist, but many travelers have experienced no change in their treatment by the airports after making a complaint.

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 will respond to complaints with a form letter in which DHS informs the complainant that it can “neither confirm nor deny” whether the person is actually included in a watchlist, and disclaiming its 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. 

Under federal law, a person left unsatisfied by a DHS TRIP response (or, who encounters difficulties traveling even after making a complaint) can seek further review of the DHS response in a U.S. Circuit Court of Appeal.  In some instances, a traveler may seek injunctive and declaratory relief before a U.S. District Court. 

Travelers may have claims for infringements of constitutional rights, including the right to privacy, due process of the laws, and equal protection of the laws.  Although the DHS and other federal agencies may respond slowly (or not at all) to complaints directly made with the agency, federal litigation compels the agencies to review their records, and, if successful in court, will result in the permanent removal of the person’s name from the “No-Fly List.” 

The “No-Fly List” is overly inclusive, and the vast web has mistakenly ensnared thousands of persons—citizens and noncitizens alike—who pose absolutely no threat to the United States.  The federal agencies, charged with protecting the security of the United States above other interests, may not always take action to correct these 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 remove a person’s name from the “No-Fly List”.