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Guest Post from Jeff Kahn on Latif v. Holder (Striking Down the No-Fly List)

Robert Chesney
Wednesday, June 25, 2014, 2:13 PM
Professor Jeff Kahn (SMU Law, also visiting at W&L Law) writes in with the following guest post on yesterday's no-fly list decision.  Be sure to check out Jeff's terrific book on the right to travel and terror watchlists (here).

Judge Anna Brown in the U.S.

Published by The Lawfare Institute
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Professor Jeff Kahn (SMU Law, also visiting at W&L Law) writes in with the following guest post on yesterday's no-fly list decision.  Be sure to check out Jeff's terrific book on the right to travel and terror watchlists (here).

Judge Anna Brown in the U.S. District Court for the District of Oregon issued an important opinion yesterday in Latif v. Holder that continues the slow dismantling of the United States No Fly List. The opinion finds that the FBI’s Terrorist Screening Center (the TSC, which composes the No Fly List and other watchlists) violated the plaintiffs’ right to due process because it lacks “any meaningful procedures” for them to contest their apparent placement on the No Fly List. The opinion is a long time in coming.

Although the case now moves to a remedy stage, the opinion brings with it the whiff of inevitability about not only the future of the No Fly List but of the larger government watchlisting program. Judge Brown joins an increasing number of federal judges finding constitutional deficiencies in their basic construction. As Jennifer Daskal and others have noted in the recent past, the Government is increasingly finding that its No Fly List arguments just aren’t flying.

The ACLU’s well-chosen plaintiffs are thirteen American citizens and permanent legal residents, including four veterans. Their allegations describe travel cut short by watchlisting that restricted their international air travel, domestic air travel, and even travel by ocean-going cargo freighter (putting paid to the frequent government response that those denied access to the friendly skies can take to the open waters). Their injuries range from lost veterans benefits to lost business to lost opportunities to visit family, or make religious pilgrimages. Several plaintiffs alleged FBI attempts to coerce their service as government informants in exchange for removal from the watchlists. The latter allegation is now at the center of a new No-Fly List case, Tanvir v. Holder.

Judge Brown has moved very slowly, and she is not done yet. Yesterday’s opinion comes one week short of the four-year anniversary of the filing of this action in 2010. A year later, in May 2011, Judge Brown dismissed the case for failure to join the Transportation Security Administration (TSA). The Government persuaded her that the court lacked subject matter jurisdiction because an old FAA statute that TSA inherited at its creation bumped review of certain types of agency orders up to the appellate court.

The Ninth Circuit reversed and remanded the case back to Judge Brown. Although the TSC composes the No Fly List, the TSA cloaks its receipt of the product in these orders to avoid trial-court discovery and privilege its own administrative record. The appellate court rightly concluded that the TSC principal, not the TSA agent, was a suitable defendant standing alone. In a sense, this is dram shop liability for the TSC’s terrorist watchlisting programs.

Desperate to avoid discovery, the Government was willing to proceed before Judge Brown with cross-motions for summary judgment (obligingly not refuting the plaintiffs’ allegations for that purpose only). Last summer, after oral argument and full briefing, Judge Brown found that the plaintiffs possessed a constitutional right to international travel. Feeling the record remained insufficiently developed for her to complete the Mathews v. Eldridge balancing test that plaintiffs’ due process claim required, Judge Brown ordered more briefing.

Yesterday’s opinion completes that Mathews process, finding that plaintiffs’ constitutional injuries are severe and the Government’s pre- and post-deprivation review processes are “wholly ineffective.” The TSC uses a two-step process to watchlist an individual. First, the TSC accepts nominations from dozens of federal, state, local (and sometimes foreign) government agencies to include individuals in a massive Terrorist Screening Database (TSDB). The TSC then sifts and sorts entries in the TSDB into additional subject-specific watchlists for use by different agencies (like the TSA uses the No Fly List). The plaintiffs, like anyone watchlisted by the TSC, were given no notice and no chance to contest whatever evidence the Government thought adequate to watchlist them. Judge Brown found this “especially important in light of the low evidentiary standard required to place an individual in the TSDB in the first place.” That “reasonable suspicion” standard, borrowed from Terry v. Ohio, is one step above a hunch.

Judge Brown also put paid to the Government’s last-ditch efforts to maintain a high level of deference for the TSC’s administrative record (having failed to keep these cases in the courts of appeals). Judge Brown, relying on the until-now latest No Fly List case, Ibrahim v. DHS, concluded that post-deprivation judicial review of the administrative record alone is not enough: “that review is of the same one-sided and potentially insufficient administrative record that TSC relied on in its listing decision without any additional meaningful opportunity for the aggrieved traveler to submit evidence intelligently in order to correct anticipated errors in the record.”

In the Ibrahim case, the plaintiff was stuck on the No Fly List although the Government admitted that she “does not pose (and has not posed) a threat of committing an act of international or domestic terrorism with respect to an aircraft, a threat to airline passenger or civil aviation security, or a threat of domestic terrorism.” Nevertheless, she remained on both the TSDB and the No Fly List because an FBI Special Agent “misunderstood the directions on the form and erroneously nominated” her to the No Fly List, a mistake he only realized on the eve of trial as a result of hard-fought discovery. The TSC record he stupidly created was left uncorrected for almost nine years, haunting the plaintiff like a bad credit report. (Full disclosure: I testified as an expert for the plaintiff in this case.)

But Judge Brown left the remedy for future briefing. Rather than devise the process due, Judge Brown ruled that the Government defendants (AG Holder, FBI Director Comey, and TSC Director Christopher Piehota) “must fashion new procedures that provide Plaintiffs with the requisite due process described herein without jeopardizing national security.” This, Judge Brown felt, was not too tall an order given the numerous examples from judicial opinions requiring the same from the Treasury Department’s Office of Foreign Assets Control (OFAC), the State Department’s foreign terrorist organization designation process, and Ibrahim v. DHS.

The Latif case is a bellwether for the fate of both the No Fly List and the much larger government watchlisting program run by the TSC of which it is only one element. Interestingly, Judge Brown sought to cabin her ruling about the No Fly List to international travel, not domestic travel. The effort is unpersuasive and we can expect the next cases to challenge the list to turn to domestic travel. The same arguments that convinced Judge Brown that air travel is not (as the Government contended) “a mere convenience” in a twenty-first century world of lightning-fast transport, commerce, and communications applies with equal force to domestic travel. Take the word “overseas” out of the following excerpt from the opinion and see if it makes a difference: “Such an argument ignores the numerous reasons that an individual may have for wanting or needing to travel overseas quickly such as the birth of a child, the death of a loved one, a business opportunity, or a religious obligation.”

Similarly, the remedy that Judge Brown ultimately crafts will inevitably be demanded by plaintiffs alleging injury from the many other government watchlists that restrict access to various activities that citizens take for granted in modern life. The TSC’s raison d'être is the centralization of decisionmaking about who goes on which lists for how long. The same arguments for deference and secrecy about the No Fly List cover the many other lists and databases that the TSC administers. Now that the federal courts have found that TSC “trust us” self-review of the No Fly List doesn’t fly, it is only a matter of time before similar cases are brought for the many other lists that, like mushrooms after the rain, sprang up after 9/11 to regulate access to modernity by the secret subdivision of different classes of citizens.

The case is an example of Yogi Berra’s feeling of déjà vu all over again. The Justice Department’s arguments against judicially imposed procedures, and for maximum deference to watchlisters and minimum constitutional protection for the right to travel all failed in this case. But, as I argue in my book on terrorist watchlists, this isn’t the first time that’s happened. These are the same arguments that the Justice Department made more than half a century ago to defend the absolute deference the State Department’s passport office demanded and to fend off judicially imposed procedures for post-deprivation review of its passport denials, all of which claimed the mantle of national security.

The courts hearing passport cases back then followed the same trajectory as the courts hearing No Fly List cases today. At the start of the Cold War, courts were afraid to challenge Government assertions that national security demanded deference to official determinations that a citizen’s travel was not in the interests of the United States, even going so far as to accept the argument that passports didn’t meaningfully affect travel itineraries. But over time the courts regained their confidence (and a bit of courage) and demanded very similar post-deprivation review processes. If the past is prologue, we can expect the TSC to comply with the speed of molasses.

That makes Tanvir v. Holder that much more important. For if its plaintiffs’ allegations that the FBI is using watchlists to coerce citizens to become government informants hold up in court, the case could reveal just how little basis there is to the earnest insistence of the TSC that it should be trusted not to abuse its powers.

In 1942, Winston Churchill said, “Now this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning.” This case pushes past the end of the beginning. How far it advances toward the beginning of the end depends on Judge Brown’s final rulings in Latif and the rulings to come in Tanvir v. Holder.

Robert (Bobby) Chesney is the Dean of the University of Texas School of Law, where he also holds the James A. Baker III Chair in the Rule of Law and World Affairs at UT. He is known internationally for his scholarship relating both to cybersecurity and national security. He is a co-founder of Lawfare, the nation’s leading online source for analysis of national security legal issues, and he co-hosts the popular show The National Security Law Podcast.

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