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ACLU Asks Ninth Circuit for No Fly List Due Process

By Robyn Hagan Cain on May 14, 2012 | Last updated on March 21, 2019

"Let's say you want to fly back to Washington, and you find yourself on the no-fly list. You're sitting in an airport, stranded. You think, 'My God, I went to law school, I work for [the Justice Department], in my heart I know I did nothing wrong.' What do you do?"

That's the million-dollar question that Ninth Circuit Court of Appeals Chief Judge Alex Kozinski raised during oral arguments about the no-fly list on Friday, The Associated Press reports.

The American Civil Liberties Union (ACLU) is demanding an answer to that question in its lawsuit against the federal government. The ACLU alleges in Latif v. Holder that the government has placed U.S. citizens and permanent residents on the no-fly list of potential security risks without a means to correct their status. Due to recent changes in Department of Homeland Security (DHS) policies, the no-fly list ballooned from 10,000 names to 21,000 names in the last year, reports the AP.

The plaintiffs want the federal courts to demand due process, but the government claims that selection procedures and other criteria associated with the list must remain secret to protect investigations and to avoid giving terrorists ideas for avoiding detection.

In 2011, U.S. District Judge Anna Brown ruled that DHS's redress program -- known as the Traveler Redress Inquiry Program (TRIP) -- can only be challenged in the appellate courts, reports Wired. "The court also concludes any 'order' through DHS TRIP that might cause the names of any or all plaintiffs to remain on or to be removed from any no-fly list would have to be issued by TSA pursuant to § 46110(a). Accordingly, this court does not have jurisdiction to provide the relief plaintiffs seek in their second amended complaint," Brown wrote.

While the TRIP process may not be perfect, the AP reports that Judge Richard Tallman seemed skeptical of ruling on the ultimate due process issue in the appeal since the plaintiffs had not completed the TRIP process. "You want us to rule on due process, yet you haven't exhausted all options through the redress process," Tallman noted.

In 2006, the Ninth Circuit Court of Appeals ruled in Gilmore v. Gonzales -- challenging the pre-flight government identification requirement -- that there is no right to fly. Should the same reasoning govern this no-fly list challenge? Does it make a difference that several of the prospective flyers in Latif were precluded from returning to their homes after starting a trip because of the no-fly list?

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