Testing an Opaque Security Power, Michigan Man Challenges ‘No-Fly List’
The plaintiff, a Lebanese-American, says he was barred from flying after refusing to become an F.B.I. informant.,
WASHINGTON — A Michigan man challenged the constitutionality of the government’s so-called no-fly list in a lawsuit on Tuesday, accusing the F.B.I. of violating his due process rights by barring him from air travel and giving him no meaningful opportunity to challenge their decision.
The case, developed by the American Civil Liberties Union, opens a new front in a still-unresolved clash between the scope of individual rights and collective security measures after the attacks of Sept. 11, 2001: the government’s practice of placing people on watch lists based on suspicions of links to terrorism.
Including people in such databases can lead to increased scrutiny at airports and during encounters with the police, deny them government benefits or contracts, and — in the case of the no-fly list — bar them from boarding aircraft or traveling through American airspace on planes that took off abroad.
The government maintains various terrorism-related watch lists that it uses for different purposes, a practice that has undergone extraordinary growth over the past two decades. Civil libertarians have criticized the lists, including the opaque standards and rationales for adding names and the adequacy of redress procedures for those who protest their addition.
The plaintiff in the new case, Ahmad Chebli, 32, is a Chicago-born United States citizen of Lebanese descent who spent much of his youth in Lebanon and lives in Dearborn, Mich. According to his complaint, F.B.I. agents asked him in 2018 to work as an informant, but he refused. It also said they also accused him of being a Hezbollah agent, which he denied.
Since then, Mr. Chebli has had significant trouble traveling by air. He was denied boarding for some flights to both foreign and domestic destinations; in late 2018, after being barred from a flight home from Lebanon, he enlisted the A.C.L.U. to help him obtain a one-time waiver so he could return to Michigan.
Mr. Chebli’s status may have changed or toggled between different restrictions. On other occasions, he was eventually permitted to fly but was first subjected to extensive scrutiny and questioning, causing him to miss his flight and rebook another one.
But his attempt to obtain information about his designation so he could challenge it via the Department of Homeland Security’s Traveler Redress Inquiry Program, the complaint said, has been fruitless. He has been seeking information since 2018, it said, without success.
“For over two years, I’ve tried to get off the no-fly list, but the government won’t even give me its reason for putting me on the list or a fair process to clear my name and regain my rights,” Mr. Chebli said in a statement released by the A.C.L.U. “No one should suffer what my family and I have had to suffer.”
The Justice Department declined to comment on the lawsuit. But it has defended the legality of the government’s terrorism watch lists and its related practices in litigation over the past decade, arguing that the procedures are lawful and reasonable given the national security interests at stake.
Mr. Chebli’s case is a sequel to a major lawsuit by the A.C.L.U. during the Obama administration that challenged government procedures for reviewing whether it was appropriate to put someone’s name on the no-fly list. In 2014, a federal judge in Oregon ruled that those regulations were inadequate and violated Americans’ Fifth Amendment right to due process.
In response, the government promised to overhaul the Traveler Redress Inquiry Program to ensure that Americans would be told if they were on the list and given a meaningful opportunity to challenge the decision. (It also removed seven of the 13 original plaintiffs in that case from the no-fly list. Several remaining plaintiffs pressed on, but that judge, and later the appeals court in San Francisco, upheld the revised procedures as applied to them.)
Citing Mr. Chebli’s inability to obtain information about the government’s evidence about him or to challenge it in a hearing before a neutral decision maker, the new lawsuit said that the revised procedures are both unconstitutional and that they violate statutory law, including a federal law that protects religious liberty, the Religious Freedom Restoration Act of 1993, because he is unable to travel to Mecca for the required Muslim pilgrimage.
“More than two years ago, Mr. Chebli filed an administrative petition for redress, but the government has failed to provide any reason for placing him on the no-fly list or a fair process to challenge that placement,” it said. “As a result, Mr. Chebli has been subjected to unreasonable and lengthy delays and an opaque redress process that has prevented him from clearing his name.”
Beyond the Oregon case, the new lawsuit takes its place among a constellation of related litigation that has tested the limits of the government’s terrorism watch-listing powers and individual rights.
In December, for example, the Supreme Court unanimously ruled in favor of three Muslim-American men who claim they were put on the no-fly list for refusing to become informants. That case turned on whether the Religious Freedom Restoration Act allows people to sue for monetary damages against government officials who are accused of violating it. (Mr. Chebli’s case is different: He is seeking declaratory and injunctive relief, not money.)
And in a ruling last week, a three-judge panel on the federal appeals court in Richmond, Va., upheld the government’s use of a broad watch list known as the Terrorist Screening Database. The decision reversed a 2019 ruling by a Federal District Court judge who had struck it down as violating Muslim-Americans’ constitutional rights.
The Terrorist Screening Database is run by the F.B.I., although other agencies may also nominate people’s names for inclusion on it. As of 2017, about 1.2 million people were on the watch list; while most were foreigners abroad, about 4,600 were American citizens.
People who are in that database are likely to be pulled aside for more rigorous screening at airports, but are generally still permitted to board their flights afterward. But the no-fly list is a subset who are subject to a more restrictive ban on flying in American airspace, even if a search of their bodies, carry-on bags and luggage turns up nothing suspicious.
The most recent publicly available data on the no-fly list, from 2016, showed about 81,000 people on it, according to the government. About 1,000 of those were American citizens or lawful United States residents who are protected by the Constitution.