PORTLAND,Ore., (Reuters) : A panel of federal judges grilled Justice Department lawyers on Friday over the U.S. government’s “no-fly” list, questioning whether those barred from commercial air travel for suspected terrorism ties are given any realistic avenue for appeal.
Government attorneys were asked to defend the process as lawyers for 15 Muslims in the United States who have been placed on the no-fly list sought to reinstate their constitutional challenge of the airline security measure.
The plaintiffs, who are U.S. citizens or permanent legal residents, said they learned of their “no-fly” status when they were blocked from boarding a commercial flight without prior notice, and were later denied any effective means of petitioning the government to be removed from the list.
“They have been deprived of their rights without redress,” Nusrat Choudhury, an American Civil Liberties Union lawyer, said in court, adding that her clients “want the opportunity to be heard before a decision-maker.”
A U.S. district court judge in Portland, Oregon, dismissed the original lawsuit, filed in June 2010, ruling the court lacked jurisdiction over the matter.
The ACLU then asked the 9th U.S. Circuit Court of Appeals to reinstate the case and decide the proper legal venue for it. Oral arguments on that request were heard on Friday.
The “no-fly” list, established in 2003 and administered by the FBI’s Terrorist Screening Center, includes some 20,000 people deemed by the agency as known to have, or reasonably suspected of having, ties to terrorism. About 500 of them are U.S. citizens, according to an agency spokesman.
The plaintiffs, who are residents of Oregon and other states and include four veterans of the U.S. armed forces, deny any terrorism links. “None of the plaintiffs pose any threat to airline security,” Choudhury told Reuters before Friday’s hearing.
The no-fly restriction has kept the 15 plaintiffs from visiting family and traveling for work or study, and several apparently were added to the list while abroad, where they ended up stranded as a result.
Their suit argues that the government violated their constitutional rights to due process and the U.S. Administrative Procedures Act by failing to provide notice and the reasons for their inclusion on the list or any realistic procedure for contesting that status.
The ACLU is seeking to remove the plaintiffs from the list immediately or allow them a chance to clear their names. The group argues that those seeking to question or challenge their no-fly status are confined to a dead-end process in which they fill out a form and receive no actual explanation in return.
The government argues there is an adequate appeals process in place and that all the plaintiffs have used it.
Friday’s hour-long proceeding before the three-judge 9th Circuit panel dealt mostly with issues of jurisdiction.
But the judges also delved into the substance of the lawsuit, pointedly asking government lawyer Joshua Waldman to explain how a person denied permission to fly goes about contesting the restriction.
“How would you proceed? ... What should the plaintiff’s do?” asked Chief Judge Alex Kozinski, adding that he wondered whether petitioners essentially faced the forgone conclusion of “too bad, you lose.”
Waldman described an administrative procedure in which individuals ultimately can take their case directly to a federal appeals court.
But the judges questioned whether this constituted a feasible avenue for challenging one’s no-fly status since appellate judges by definition are limited to reviewing the records established through lower-court proceedings.
Kozinski also pressed Choudhury, the ACLU lawyer, on how individuals could seek legal redress without knowing that they have been placed on the no-fly list. She replied that they know because “they have been denied boarding (a flight) in a very public manner.”
The suit was originally filed in Oregon because only one plaintiff - Mohamed Kariye, an imam at a large Portland mosque - was in the United States at the time.
U.S. Attorney General Eric Holder, FBI Director Robert Mueller and Timothy Healy, director of the Terrorist Screening Center, are defendants in the suit.
The appeals court gave no indication when it would render a decision.