[Infowarrior] - WatchListed Fliers Can Sue, Appeals Court Rules

[Richard Forno]

Watch-Listed Fliers Can Sue, Appeals Court Rules
By Ryan Singel EmailAugust 20, 2008 | 1:20:36 PM

http://blog.wired.com/27bstroke6/2008/08/watch-listed--1.html

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.