Chipping away at the no-fly list

Writing last week about a book about the no fly list, I highlighted law professor Jeffrey Kahn's conclusion that the list is no longer used to keep dangerous people from harming commercial flights. Rather, this post-9/11 monstrosity is now used to punish and harass Muslims and others that the U.S. government considers inadequately cooperative.

The civil rights organization Council on American Islamic Relations (CAIR) reports that a federal judge seems concerned that the no fly list infringes on the rights of citizens.

The decision includes a long explanation of the grave consequences imposed on those the government places on the no-fly list, noting that the list "implicates some of our basic freedoms and liberties as well as the question of whether we will embrace those basic freedoms when it is most difficult." 

Judge Anthony J. Trenga found that the inability to fly "effectively limits educational, employment and professional opportunities," and being placed on the list is "life defining and life restricting across a broad range of constitutionally protected activities and aspirations."

… The court rejected the government's attempt to dismiss [Gulet] Mohamed's claim based on his inability to return to the United States, holding that a "U.S. citizen's right to reenter the United States entails more than simply the right to step over the border after having arrived there."

The judge's decision allows CAIR to go forward with a lawsuit on behalf of a young American named Gulet Mohamed who claims he was was tortured in Kuwait after being denying boarding on his flight home. He had traveled in Yemen and Somalia.

You can see and hear Mohammed's own description of his experience in this news report from the day he was reunited with his mother in Virginia.

Judge Trenga seems sympathetic to Mohammed's claim of injury.

In allowing Mohamed's case to move forward, the court questioned the standards the government utilizes in placing people on the list, finding it "not difficult to imagine completely innocent conduct serving as the starting point for a string of subjective, speculative inferences that result in a person's inclusion on the No Fly List." 

The judge noted that the government has failed to produce any evidence of "past or ongoing unlawful conduct" and he also noted the "possibility, if not the probability, that [placement on the No Fly List] may be bound up with beliefs, personal associations, or activities that are perceived as threatening but are perfectly lawful in themselves, and may indeed be constitutionally protected."