Monday October 17, 2022
By Rachel Weiner
Those challenging the constitutionality of the ‘No-Fly List’ and Terrorist Screening Database say that when they sue, they get removed, making it impossible to have their concerns heard in court
Reuters / Sue Ogrocki © Reuters
Saadiq Long was only allowed to visit his mother after FBI agents questioned her. He was strip-searched at an airport in Amsterdam and arrested when visiting Turkey. He was banned from two Persian Gulf states and fired from a trucking company.
Nine years of such troubles, he came to believe, all arose from his placement on a list of suspected terrorists banned from air travel in the United States. Long, a veteran and Muslim convert, filed a lawsuit in federal court in Alexandria, Va. But as his lawsuit started moving forward in 2019, the government told him he had been removed from the list.
Advocates say the reversal is part of a pattern from the government to evade scrutiny of the Terrorist Screening Database, a secret, FBI-maintained list of known or suspected terrorists subject to heightened security screening at borders, and of the smaller No Fly List of those barred from U.S. airspace.
Hundreds of thousands of people have been placed on the lists since the Sept. 11, 2001, terrorist attacks. For years, civil liberties groups have challenged the process of determining who is on the two lists as unconstitutional but say they’re often hampered by the government’s tactics.
“The Government removes people from their secret lists only when they fear that a court might impose restraint on their lawlessness,” said Gadeir Abbas, an attorney with the Council on American-Islamic Relations (CAIR) litigating Long’s case. “If the FBI has its way, delisting a person will become a kind of cheat code the federal government can use to deny people their day in court.”
The group has eight such examples, he said. The latest involves Abdulkadir Nur, a Somali-born U.S. citizen who lives in Virginia and says in court filings he had been subjected to extensive, intrusive searches at U.S. airports since 2008. That year, Nur was part of a United Nations relief convoy in Somalia that local insurgents raided; he was questioned in the subsequent investigation but never accused of wrongdoing.
Nur got no confirmation that he was ever on the terrorism watch list or taken off it. His attorneys say they can infer both from the scrutiny he consistently received at airports until this month, when he did not get searched or interrogated for the first time in 12 years.
“The Government ... merely has stopped violating the law against Nur, and only to wrangle out of a lawsuit it cannot win,” his attorneys wrote.
A spokeswoman for the Justice Department did not respond to a request for comment.
CAIR is arguing that Nur’s lawsuit should continue despite the apparent concession. But earlier this year, the U.S. Court of Appeals for the 4th Circuit ruled that Long’s challenge to the No Fly List was moot because the government had taken him off. He can keep fighting his placement on the broader watch list.
Because of a 2015 ruling in another federal court, Long was able to learn that he was on the No Fly List. (Placement on the broader watch list remains a mystery.) He was told by the Department of Homeland Security that he was on the list because he had “participated in training that may make you a threat to U.S. national security,” and that an arrest in Turkey in 2015 was also “of concern to the U.S. Government,” according to court records.
Long says his only military training came from the U.S. government and that his arrest on a vacation in Turkey was a direct result of his placement on the No Fly List. Long served in the Air Force from 1987 to 1998. While stationed in Turkey, he converted to Islam and decided he could not be responsible for civilian deaths. Denied conscientious objector status, he ended up leaving the military with an “other than honorable discharge.” He stayed in the Middle East and became an English teacher.
The DHS letter said the government “withheld certain information” about Long’s placement because of “national security concerns.”
But in late 2020, when the case was before the U.S. Court of Appeals for the 4th Circuit, he was informed he had been removed from the No Fly List and would not be put back on, absent new information; the Department of Justice made a similar guarantee in court.
Long’s attorneys argued that his removal from the list shows “the Government is willing to place and maintain people on these lists even when they pose no national security threat.”
A panel of 4th Circuit judges said they could not agree.
“While the government doesn’t concede constitutional error, we assume it removed Long from the list because, as he contends, he doesn’t belong on it,” the court ruled in June. “To say otherwise would be to suggest the government risked national security simply to moot a lawsuit. This we decline to do.”
The 9th Circuit ruled differently a month earlier, keeping alive a lawsuit from a man named Yonas Fikre, who alleges he spent years on the list for refusing to become an informant, even after he was removed.
“The government has not explained why it added him to the No Fly List in the first place and why, years later, it spontaneously took him off of it,” that court wrote in 2018. “Nothing prevents the government from putting him back on the list.”
The government subsequently issued a declaration similar to the one given to Long, saying Fikre would not go back on the list based on “currently available information.” But the 9th Circuit said that was not enough, because the government “has not ‘repudiated the decision’ to place Fikre on the list, nor has it identified any criteria for inclusion on the list that may have changed.” Without such disavowal, the court said in a unanimous decision this May, “Fikre remained stigmatized ‘as a known or suspected terrorist.’”
That was a “very powerful opinion,” said Jeffrey Kahn, a former Justice Department attorney who has studied the terrorism watch list as a law professor at Southern Methodist University. The goal of the government attorneys in these cases is “to end the case” before trial, he said, and just taking someone off the list “is an easy way to kill the lawsuit.” The government can track people in other ways and potentially put them back on the lists.
The same U.S. judge in the Eastern District of Virginia presiding over Nur’s case, Anthony J. Trenga, ruled in 2019 that the watch list system violates due process rights.
“The risk of erroneous deprivation of ... travel-related and reputational liberty interests is high,’” the George W. Bush appointee wrote in response to a suit filed by 23 Muslim Americans.
He noted that for an agency to nominate a name for the list requires only “reasonable suspicion” that someone is a “suspected terrorist,” which does not require any evidence of involvement or interest in criminal activity. Ninety-nine percent of nominations are accepted by the Terrorist Screening Center.
According to court filings, as of 2019 there are roughly 1.1 million people on the broader watch list, of which 81,000 are barred from flying.
“If there were that many terrorists in the world, we would be getting attacked all day long,” said Javed Ali, former senior director for counterterrorism at the National Security Council. “That’s not the way to use a tool like this — if people are in there in error, they should not be there in perpetuity.”
He suggested a court similar to the one that oversees secret surveillance orders could evaluate Americans’ placement on these lists.
The 4th Circuit overturned Trenga’s decision last year, saying “the delays and burdens experienced by plaintiffs at the border and in airports, although regrettable, do not mandate a complete overhaul.”