A Return Flight for Due Process? An Argument for Judicial Oversight of the No-Fly List
30 Pages Posted: 26 Mar 2014 Last revised: 23 May 2015
Date Written: March 25, 2014
Since 2001, thousands of people have been placed on the No-Fly List by mistake. Even more have been confused with individuals on the list based on watchlist mismanagement. Politicians such as Ted Kennedy and Donald Young have been denied flights because of the list. Famous musicians, pilots, children, and Nelson Mandela have been included among the thousands of names erroneously placed on the FBI’s No-Fly List. To make matters worse, the FBI never informs travelers of their status on the list and the process for removing ones’ name from the list is often unfruitful.
Because of the difficulties facing travelers placed on the No-Fly List in error, the past decade has brought several cases to various federal courts over the right to travel and the No-Fly List. While many of these cases have been unsuccessful in providing any answers to plaintiffs, recently two cases have arisen that have called into question the way in which the No-Fly List is compiled and the redress available to those placed on the list in error. In August 2013, the District Court of Oregon held for the first time that the No-Fly List affects a constitutional interest. Also, in January 2014 the District Court for the Northern District of California held that the U.S. government must disclose to a citizen of Malaysia her status on the No-Fly List. These legal victories for travelers note the importance of the right to travel and the necessity for more accurate and judicious management the No-Fly List.
This comment proposes that a court order, similar to a warrant, be required prior to placement on the No-Fly List. This requirement would add a layer of judicial review to reduce the amount of people placed on the list in error. It would require the government to have evidence of a person’s probable guilt or danger to society before depriving them of a fundamental constitutional right. This comment also proposes a reform to the redress process, providing information to those placed on the list, but limiting that information in the interest of national security. These proposals seek to strike a healthy balance between allowing the government to pursue its interest in national security while also securing the constitutional rights of individuals.
Keywords: No-Fly List, No Fly List, Due Process, Ibrahim, Latif, Aviation, TSA, DHS, Terrorism, Watchlist
JEL Classification: K39
Suggested Citation: Suggested Citation