Judge rejects government argument in No Fly List suit
McLean, Va. — A federal judge on Thursday rejected the U.S. government’s effort to invoke its state-secrets privilege to quash a lawsuit challenging the constitutionality of its No Fly List.
Government lawyers had argued it would be impossible to adjudicate the case without exposing state secrets about the individual involved and the process used to place people on the list.
Virginia resident and U.S. citizen Gulet Mohamed filed the suit in 2011 after he was denied boarding on a flight back to the U.S. from Kuwait. He was allowed to fly home shortly after filing, but the lawsuit has continued.
Mohamed’s lawyer, Gadeir Abbas, said the ruling is significant because “it is the most full-throated rejection thus far of a state secrets claim in a watchlist case.”
When the government first sought to invoke the state secrets privilege last year, U.S. District Judge Anthony Trenga expressed doubts and ordered the government to submit a sealed statement to him only outlining its position in more detail.
In Thursday’s ruling Trenga said he reviewed the information and does not believe all of it qualifies for a state secrets privilege. And even if it did, he said he can make a ruling in the case without using any of that information by analyzing the general procedures the government uses in putting someone on the No Fly List and whether a person who challenges his placement is afforded due process required under the Constitution.
Mohamed’s case is one of several across the country challenging the No Fly List. Last fall, about 64,000 people were on the list, and typically less than 5 percent of those are Americans, according to the government.
Earlier this year, in response to a different lawsuit, the government has changed its procedures and now provides limited explanations to people about why they were placed on the list.
Although the judge refused to dismiss Mohamed’s lawsuit, he said he can’t decide whether the new rules are constitutional until Mohamed goes through the revised process.
Abbas said Thursday he expects Mohamed will do so to move the case forward.
Under the old rules, the government would refuse to confirm whether a person was on the list, much less provide an explanation of why. Under rules announced in April, the government will confirm placement on the No Fly List when a passenger who is an American citizen makes an inquiry after being denied boarding. If the government confirms the passenger’s presence on the list, the passenger may receive an unclassified summary of the government’s rationale.
Hina Shamsi, director of the American Civil Liberties Union’s National Security Project, which has taken the lead on a similar challenge to the list in Oregon, said the revised process is still woefully inadequate. The government still does not reveal any information in its possession that would weigh against placement on the list and those who are on the list are not allowed a hearing to challenge the evidence against them, she said.
She said Trenga’s ruling is “another instance in which a judge has rightly expressed doubts about the government’s claims of secrecy.”
Department of Justice spokeswoman Nicole Navas said she could not comment on the ruling because the litigation is ongoing.