A federal appeals court panel has upheld the government’s placement of four people on the no-fly list, finding the basis for the decision “reasonably clear’’ and not vague as challenged.
One or more of the four plaintiffs allegedly financed terrorists, trained with militant groups overseas or advocated for terrorist violence, the three-member panel of the 9th U.S. Circuit Court of Appeals found Monday. The judges, though, noted no one has been charged with any crimes and the government’s information amounts to allegations.
“Upon review of the government’s public and classified filings, we are satisfied that the No Fly List criteria are governed by constitutionally sufficient standards, at least as applied to these plaintiffs,’’ Circuit Judge Raymond C. Fisher wrote in the 60-page opinion.
The panel also held that Oregon’s U.S. District Judge Anna J. Brown properly dismissed due process claims by the plaintiffs for lack of jurisdiction, which now places review of such no-fly list designations by the Transportation Security Administration with appeals courts rather than the district court.
The American Civil Liberties Union, which brought the challenge in a suit filed in federal court in Oregon in 2010, criticized the ruling.
“This decision lets the government hide behind overblown secrecy claims to deny our clients’ constitutional right to due process,” said Hina Shamsi, director of the ACLU’s National Security Project. “Our clients have been unable to fly to visit family, pursue job opportunities, or fulfill religious obligations for over nine years based on vague criteria, secret evidence, and unreliable government predictions. These citizens have never been charged with a crime and asked for fair notice and a fair process to clear their names and regain rights most Americans take for granted. Instead, the court has left them trapped in an indefinite Kafkaesque nightmare.’’
The no-fly list prohibits people from boarding commercial aircraft flying to, from or within the United States or through United States airspace. The plaintiffs challenged both their placement on the list and the procedures provided to challenge their inclusion on the list.
U.S. Justice Department lawyer Joshua Waldman told the appeals panel that the government since 2015 has followed new procedures that provide reasonable notice to people on the list and an opportunity to respond or challenge the placement.
People prevented from boarding a plane can ask if they are on the list and why, Waldman said. People also can submit material to challenge the government’s decision.
Once the new procedures were adopted, seven of the original 13 people who filed the lawsuit were cleared to fly. The court dismissed their claims, as well as the claims of a deceased plaintiff.
Mohamed Sheikh Abdirahman Kariye, the former imam of Portland’s largest mosque, also had been a plaintiff and was on the no-fly list until he reached a settlement with the government in January that arranged for him to travel back to his homeland, Somaliland, followed by the revocation of his U.S. citizenship.
According to documents reviewed by the appeals panel, one of the four remaining plaintiffs allegedly made statements in support of terrorism and indicated a willingness to fight in Iraq against the United States. During an interview with the FBI in July 2002, the plaintiff acknowledged buying and distributing lectures by Anwar al-Awlaqi, a designated global terrorist, and advocating the bombing of Jewish settlements in posts on al-Awlaqi’s website. Al-Awlaqi was killed in a 2011 U.S. drone strike.
A second plaintiff admitted participating in militia activities in Somalia and receiving weapons training at a camp in Somalia, the government alleged.
A third plaintiff allegedly traveled to Somalia to train for and engage in jihad, according to the government.
For the fourth plaintiff, the government didn’t provide detailed allegations and cited only a general concern about the nature and purpose of his travels to Yemen in 2010. The government said it couldn’t provide more details to the appeals court due to national security concerns.
The four contested their inclusion on the no-fly list but didn’t submit any evidence to bolster their arguments, the appeals court said. The Terrorist Screening Center reviewed their challenges and made recommendations to the Transportation Security Administration, which ruled each should remain on the list.
The plaintiffs argued they were denied due process based on a faulty “prediction that they might someday commit violent acts of terrorism,” their lawyers said. They further argued that the no-fly list’s criteria violate First Amendment-protected speech and association and impose an unreasonable punishment — an indefinite ban on air travel.
They argued that the criteria don’t give people notice about what conduct may lead to inclusion on the list, such as what associations, foreign travel or social media activity would raise suspicion. Without clear standards, the criteria can lead to “arbitrary enforcement,’’ their lawyers said.
The government argued that because the criteria impose civil rather than criminal penalties, with less severe consequences, the court should give it “greater tolerance.’’
“We are not persuaded that the criteria are vague merely because they are based on a threat assessment involving a prediction of future criminal conduct,’’ the appeals panel found.
“Even if the criteria might be vague as applied to others – a question we do not reach – this is an as-applied challenge, and we are persuaded that each of these plaintiffs had fair notice that his conduct would raise suspicion under the criteria,’’ the ruling said.
The four plaintiffs were:
— Faisal Kashem, who grew up in New York and Connecticut. He was studying Arabic and Islam at a university in Saudi Arabia when he was barred from flying back to the United States for a summer vacation in June 2010. Government officials have cited Kashem’s online statements and political views as the basis for his travel ban.
— Raymond Knaeble, a military veteran who was honorably discharged from the U.S. Army in 2003 and moved to Kuwait in 2006 to take a job with an energy and industrial products multinational manufacturer. He was barred from flying to the United States when he was offered a job in Qatar and had to return to the United States to take a medical exam for the job. He had to go through Mexico and embarked on a 12-day journey to California. Knaeble converted to Islam in 2008 and with others created a website about the religion’s teachings.
He was told he was on the list due to travels from one unidentified location to another.
— Amir Meschal, born in New Jersey but now living in Minnesota. He was prevented from boarding a flight to California in June 2009 to visit friends. The government’s public reason for barring Meschal’s travel stems from alleged statements he made in 2017 to FBI agents who detained him for months in East Africa.
— Stephen Persaud, a nurse in Los Angeles. He has been barred from flying for at least 7 \u00bd years.
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