On June 24th, a federal judge in Oregon ruled that the government’s no-fly list, which seeks to prevent people with suspected terrorism ties from traveling to or within the United States, is unconstitutional.  The lawsuit was filed by the American Civil Liberties Union on behalf of 13 plaintiffs who argued that once they were placed on the no-fly list, there was no practical way to challenge the ban or even to obtain any reasonable explanation for it.  The plaintiffs claimed that the inability to fly caused them real harm. 

The US Department of Justice argued that since there are other modes of domestic and international travel available to the individuals, there is no constitutional right to travel by air.  Further, the Justice Department maintained that the no-fly list is necessary for national security, to protect the country from hijackings and terrorist attacks. 

However,  U.S. District Judge Anna Brown agreed with the plaintiffs, ruling that the government’s failure to provide an explanation for being placed on the list or any meaningful method to challenge the no-fly designation is a violation of the Fifth Amendment’s guarantee of due process.  In response to the Justice Department’s argument that other means of travel remain available to those on the list, Judge Brown wrote in her opinion, “Such an argument ignores the numerous reasons that an individual may have for wanting or needing to travel overseas quickly, such as birth of a child, the death of a loved one, a business opportunity, or a religious obligation.”

Judge Brown ordered  the government to change current procedures to create a  process for people to challenge the designation in a way that does not jeopardize national security.  Additionally, passengers must be: (1) Notified of their inclusion on the list; (2) Able to submit evidence opposing the designation; and (3) Provided with any unclassified information that warranted the individual’s inclusion on the list.  Established after the September 11th attacks, the no-fly list includes approximately 20,000 names of individuals of which approximately 500 are U.S. citizens.

Jenna Stras Baranko