On Wednesday, a federal court in Oregon held that the Department of Homeland Security’s “no-fly list” redress process is unconstitutional, failing to meet due process requirements. Thirteen U.S. citizens and legal residents brought the suit after unsuccessfully petitioning the government for removal from the list.

The list is a subset of the government’s Terrorist Screening Database, compiled by the FBI’s Terrorist Screening Center and sent to TSA for its use to screen passengers. To be placed on the list, the government must find “reasonable suspicion” that a person “is known or suspected to be, or has engaged in conduct constituting . . . terrorist activities.”

The DHS Traveler Inquiry Redress Program (TRIP) provides the avenue for individuals who believe they have been wrongly or mistakenly placed on the list. Reviewing the TRIP process along with the subsequent judicial review afforded petitioners, the court found the government’s adjudication process one-sided.

Because the list is Security Sensitive Information (SSI), the government would not acknowledge the plaintiffs were on the list. Therefore, the redress process and independent judicial review did not provide plaintiffs with the opportunity to respond to the information used to determine their inclusion on the list. The court concluded that these procedures violated plaintiffs’ due process rights.

The DHS “no-fly” list has long been a valuable tool for TSA and the poster child for civil liberties activists. The secrecy surrounding who is on the list and how they got there has always spawned Orwellian suspicions.

However, the government maintains that concealing information—even existence on the list—is needed to protect sources and methods or to allow for law enforcement investigations. Unfortunately, the public hears this as a bureaucratic rationalization: we know you are bad, you know you are bad, but we don’t want you to know we know you are bad, but you know that because we won’t let you get on a plane, and still we have no comment.

This line of reasoning slides from Orwellian to Monty Pythonian pretty quickly for most reasonable people.

The Oregon court did recognize the importance of the list in the national security scheme. It did apply a balancing test adopted by the Supreme Court to weigh the plaintiffs’ rights (liberty to travel and due process) and the state’s interests (security). In the end, the court could not find that simply providing basic information to people who believe they are wrongly aggrieved or misidentified and allowing individuals to respond to specific information or allegations would weaken security objectives.

The government will most likely appeal. It has no choice. While the decision is interesting, the appellate court’s decision will be determinative of whether TSA will entertain changes to the redress process to address the judiciary’s concerns.

Jeff Sural serves as counsel in the Legislative & Public Policy Group at Alston & Bird, LLP. He will focus his practice on homeland security and transportation matters on Capitol Hill and in federal government agencies. Read More