Airline passengers on the government’s no-fly list can sue the government to get their names removed, according to a federal appeals court ruling Monday that swept aside complicated judicial rules that insulated the government from lawsuits over the sprawling list of suspected terrorists.

The decision (.pdf) marks the first time that an individual has been allowed to use the court — rather than a form mailed to a Homeland Security office — to contest their inclusion in the nation’s secret anti-terrorism database. In a recent interview, Homeland Security chief Michael Chertoff said such court reviews would destroy the watch lists and lead to another hijacking like 9/11. Those who continually run up against the list describe the experience of trying to figure out how to get off the list as Kafkaesque.

The U.S. 9th Circuit Court of Appeals decided 2-1 to overturn a lower court dismissal of the case on jurisdiction grounds. The lower court found that Congress protected the Transportation Security Administration’s aviation safety orders from legal challenges in district court, and that the case had to be filed in the court of appeals first. That essentially blocks any plaintiff from calling witnesses and subpoenaing documents — leaving them with only the possibility of challenging the constitutionality of the order itself.

That notion struck Chief Judge Alex Kozinski as nonsensical:

Just how would an appellate court review the agency’s decision to put a particular name on the list? There was no hearing before an administrative law judge; there was no notice-and-comment procedure. For all we know, there is no administrative record of any sort for us to review. … (the process of maintaining the No-Fly List is opaque). So if any court is going to review the government’s decision to put Ibrahim’s name on the no-fly list, it makes sense that it be a court with the ability to take evidence.

Kozinski, joined by James Otero, found instead that the TSA’s no-fly and selectee lists were compiled and maintained by another agency — the Terrorist Screening Center — that wasn’t protected, so the challenge can proceed. Judge Randy Smith dissented, saying Congress clearly wanted to protect the TSA from such suits.

The case arose after a Malaysian woman studying at Stanford attempted to fly from San Francisco to Malaysia in January 2005, but United Airlines identified Rahinah Ibrahim as being on the no-fly list. The airline contacted the police, who called the TSA’s intelligence service. There an employee named John Bondanella told police to detain and question Ibrahim, and call the FBI. Ibrahim was handcuffed in front of her 14-year-old daughter and taken to the police station, where she was held for two hours until the FBI called to say let her go.

Ibrahim is suing the feds, United Airlines, San Francisco county and a number of individuals. She is also seeking an injunction to have her name removed from the list.

The appeals court, overturning the lower court, is also allowing Ibrahim to sue Bondanella personally. She alleges that his order to detain her violated her constitutional rights, since the no-fly list is not a list of wanted terrorists, but rather a list of people suspected of being too dangerous to board a plane.

C-Span has an online video of the April hearing.

Photo: Emanuele Aymerich/Flickr

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