no-fly list

Why the odious ‘no-fly’ list is now a constitutional no-go

Crime, Freedom, Lisa Bloom, News, Rights, Travel

Amir came into my law firm office about a year ago. An educated, pleasant American citizen of Persian descent, he supported his wife and kids by operating a small marketing business from his southern California home. To stay connected to his family members back home in Iran, he occasionally visited his home country. Whenever he did, he was stopped by TSA, taken into a back room, and often detained for hours. His phone and computers were searched without his consent. He was accused of being a terrorist, though he had no criminal history whatsoever. He would often miss his flights. The last time, his young son was present and watched his father being humiliated by agents of the U.S. government.

Amir, of course, is not his real name. Scared, he remains in the shadows. He told me he was terrified to even complain about this, because the government would surely become even more vindictive against him. What might they do next? In researching the matter, my associates and I discovered, to our disgust, that there was really nothing that Amir could do. He was obviously on the no-fly list – he’d even been told that by one TSA agent. But he had next to no options for redress. He could file a complaint with the government, but it had no obligation to give him a hearing, or even confirm that he was on the no-fly list or why. He couldn’t correct the mistake. Most in the Muslim American community felt that complaining made matters worse.

That’s why this week’s ruling by a federal court in Oregon is so important. In the first ruling squarely on the subject, Judge Anna Brown reviewed the shameful manner in which the government has put people on this secret list – without affording them the bedrock constitutional right to a hearing to defend themselves and correct government mistakes – and ruled the system unconstitutional. The government now has a few weeks to come up with fairer procedures.

The government argued that while we all have a constitutional right to travel, no particular right to travel by plane existed – people like Amir could always take a boat or car. Really? To Iran? Are we living in the 19th century? In the case, one of the plaintiffs, unable to board a flight back to the U.S. from Colombia, had to travel for twelve long days to get back to his American family.  Judge Brown sensibly observed that “international travel is not a mere convenience or luxury in this modern world. Indeed, for many, international travel is a necessary aspect of liberties sacred to members of a free society.”

Kudos to the American Civil Liberties Union (ACLU), which has fought this protracted legal battle since 2010, and to the 13 Muslim American plaintiffs – four of them veterans – who endured to get this victory. They did it for themselves but also for the Amirs among us, who must be granted equal rights and dignity.

In the weeks to come, Amir and tens of thousands of others on the no-fly list will be watching to be sure that the government complies with this decision. With this change in the law, civil rights lawyers like me will now be able to fight for the constitutional rights of Muslim Americans.

Stigmatizing and demeaning an entire ethnic group because of the bad acts of a few of its members is the very definition of racism. Secret lists that interfere with the lives of innocent Americans reek of the McCarthy era. In his final speech, Dr. Martin Luther King, Jr. said, “All we say to America is be true to what you said on paper.” Judge Brown’s ruling moves us in that direction.

The views and opinions expressed here are those of the author and do not necessarily represent those of Avvo.

Photo Credit: Arina P Habich /