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  • Once more into the breach, dear friends…

    William Fisher

    By William Fisher.

    King Henry V by William Shakespeare: Act 3. Scene 1

    On the heels of an Appeals Court ruling allowing an ACLU lawsuit against the so-called “no fly” list to go ahead, a Muslim legal aid organization has volunteered to finance a second lawsuit.

    The Muslim Legal Fund of America (MLFA), a national civil liberties defense organization, agreed to fund the lawsuit filed on behalf of Jamal Tarhuni, a U.S. citizen who was unable to board a return flight to his home in Oregon due to his name being on the government's no-fly list.

    The lawsuit, Tarhuni v. Holder et al, was filed in the United States District Court for the District of Oregon, Portland Division, and charges that government agents denied Tarhuni due process under the Fifth Amendment, rights of citizenship under the Fourteenth Amendment, assistance of legal counsel under the Fifth Amendment and other constitutionally-protected rights.

    On January 17, 2012, Tarhuni was returning home from a humanitarian mission in Libya, where he provided assistance to Medical Teams International, an Oregon-based Christian relief organization.

    The MLFA that agents refused to let him board his Air France flight from Tunis, Tunisia. According to the lawsuit, “agents interrogated Tarhuni about his religious views and practices as well as his activities in Libya. Agents then attempted to convince Tarhuni to sign a document waiving his constitutional rights as a condition of being allowed to return home to his family in Oregon.”

    "No American should be detained and questioned because of his or her religion, ethnicity or for having a non-Anglo name," said Khalil Meek, Executive Director of MLFA. "We're all for security and keeping America safe, but indiscriminately convicting people and sentencing them to a no-fly list with no mechanism for defending themselves is against the values of justice we hold dear in America."

    Tarhuni was finally allowed to fly home on February 14, 2012, a month later than his original schedule.

    The lawsuit also claims that Tarhuni has been prevented from boarding domestic flights, forcing him to travel by car or rail when representing Medical Teams International at a Nobel Peace Prize function in Minneapolis, attending meetings in Washington, D.C., and speaking at an event in Seattle. The government has failed to provide any remedy to challenge his inclusion on, or removal from, the no-fly list. Medical Teams International (formerly Northwest Medical Teams) is a non-profit humanitarian aid and global health organization. Tarhuni is seeking $1 million in damages.

    The Muslim Legal Fund of America (MFLA) is a national civil liberties legal fund that defends the U.S. Bill of Rights by supporting legal cases involving civil liberty encroachments.

    Here’s what the ACLU had to say:

    First, the good news. Last week, the Ninth Circuit Court of Appeals unanimously ruled that the ACLU’s lawsuit challenging the U.S. government’s secretive No Fly List should go forward.

    “This decision is a true victory for our clients and all Americans,” said Muskrat Choudhury, Staff Attorney with the ACLU National Security Project.

    He explained: “More than two years ago, 15 U.S. citizens and permanent residents, including four military veterans, were denied boarding on planes. None of them know why this happened. And no government authority has ever given them an explanation or a fair chance to clear their names.”

    At that time, Choudhury said, “the ACLU filed a lawsuit on their behalf. It challenged both the placement of these Americans on the No Fly List and the government’s failure to afford them a fair redress process after depriving them of their right to travel. We sued the logical government agencies: the FBI and its subagency, the Terrorist Screening Center, which creates and controls the No Fly List.”

    But, in May 2011, Choudhury explains, “The district court in Portland dismissed the case for lack of jurisdiction. The Court ruled that we should have sued the Transportation Security Administration, (TSA) which administers the (woefully deficient) redress process for travelers denied boarding on planes.”

    Not being easily intimidated, the ACLU appealed to the Ninth Circuit Court of Appeals.

    At the hearing, Choudhury argued that “the district court decision was wrong because TSA doesn’t have the power to put people on, or take them off, the No Fly List—that’s the job of the FBI and TSC. I also argued that placing our clients on the No Fly List without providing them any opportunity to confront and rebut the ‘evidence’ against them is unconstitutional.”

    “As the ACLU previously blogged, the government attorney astonishingly refused to concede that federal courts even possess the authority to remove names from the No Fly List. Taken to its logical conclusion, the government’s position would mean that no court would be able to correct the wrongful placement of American citizens and permanent residents on the No Fly List even if these people got to court by jumping through all of the hoops that the government argued should be put in front of them.”

    According to the government, “all a person could do is file a complaint with the existing TSA redress process, and simply hope that some government official would correct a mistake or change her mind. This position is untenable, especially because we know that government watch lists are bloated and include the names of innocent people.”

    Last week’s Ninth Circuit decision “marked a first and important step towards putting a check on the government’s ability to blacklist its citizens without recourse.”

    Estimates of the number of people on the no-fly list range from 1,000 to 10,000. In addition, the government maintains so-called “watch lists” – databases of people who are not prohibited from flying but who have raised the suspicions of the government and may be singled out at any time for additional questioning. According to some who have seen some of these databases, they are rife with errors.

    “The Ninth Circuit reversed the district court and permitted our lawsuit to go forward.” It affirmed our position that the government had “concede[d] that TSC decides both whether travelers are placed on the List and whether they stay on it,” and found that it would be “futile” to order TSA to remove the plaintiffs names or give them a chance to clear their names from the No Fly List.

    “It also recognized that the government failed to provide a good answer to a question of tremendous importance to our clients and all Americans:

    At oral argument, the government was stymied by what we considered a relatively straightforward question: what should United States citizens and legal permanent residents do if they believe they have been wrongly included on the No-Fly List?”

    “The Ninth Circuit reached the right answer: federal district courts can adjudicate citizens’ and permanent residents’ challenges to their placement on the No Fly List and their demand for a fair redress process.”

    “This decision means that a court will finally consider our clients’ claims that a secret government watch list that denies Americans the ability to fly without giving them an explanation or fair chance to clear their names violates the Constitution.”

    How does all this official two-ing and fro-ing affect our citizens?

    Some weren’t allowed to fly abroad. Some were abroad and were prevented from coming home to the US. As a result, they missed important meetings where their veterans’ benefits were to be discussed. They were separated from their families and their lawyers. They incurred substantial legal and other costs for which they will not be reimbursed.

    The problems that have emerged with the Transportation Security Agency's ""no-fly"" list offer the American people a preview of some of the problems that will inevitably bedevil the new ""Computer Assisted Passenger Pre-Screening System"" program (CAPPS II) currently under construction by the TSA.

    Inaccurate information. Because of the no-fly list, for example, innocent, law-abiding Americans have found themselves subject to relentless hassles, interrogation and searches every time they try to travel by air. They may share similar names with those who have been placed on suspect lists, or be the victims of random error, malicious discrimination, or mysterious bureaucratic quirks.

    Lack of due process. The lack of recourse for those who find themselves singled out by the no-fly list makes for a truly Kafkaesque situation. Innocent victims are unable to face their accusers - the source of the information that has made them a target - unable to see that information, or the criteria by which it was judged, and have no meaningful way to appeal their status.

    And the ACLU’s Choudhury added: “The infuriating thing about this whole episode is that when each one of them tried to correct the problem through the existing redress system, the government refused to tell them why they were put on the No Fly List and to provide them a reasonable chance to defend themselves. Denying people such fundamental rights in complete secrecy and without due process is unconstitutional.”

    So maybe appealing to the idiosyncratic 9th Circuit Court of Appeals is just what the doctor ordered.

    Until the Government invokes the State Secrets Privilege.


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