The American Civil Liberties Union is currently in the Ninth Circuit Court of Appeals representing a group of Americans and legal U.S. residents who believe they're on government watch lists, including the no-fly list, and want to find out why. Just as important, they want access to a means of getting off those lists. As it is, the goverment's redress procedures are a little opaque, including the warning, "Because the contents of the consolidated terrorist watchlist are derived from classified and sensitive law enforcement and intelligence information, the [Terrorist Screening Center] cannot confirm or deny whether an individual is on the watchlist." The ACLU is looking for something a tad more informative and effective to help people who'd like to know why federal officials won't let them onto airplanes and what they can do about it.
The ACLU blog reports this interesting exchange in the course of arguments this past Friday:
Chief Judge Alex Kozinski had a simple question for the government attorney: what would you do if you found yourself on the No Fly List? After some hemming and hawing, the attorney said that he would seek "redress" from the Department of Homeland Security – even though DHS does not place people on the No Fly list and has no authority to remove them (that's the FBI's job). Because, the lawyer conceded, DHS would not be able to confirm or deny whether he was on the list, he would then seek review in a federal appellate court. And what would the court be able to do?, asked Judge Kozinski. Not much, said the government lawyer. In fact, the lawyer would not even concede that a federal court possessed the authority to order someone removed from the No Fly List.
Invoking Kafka tends to draw the oh-so-jaded cliché police, but it seems appropriate enough here. As the ACLU's Ben Wizner notes, "The Due Process Clause of the Fifth Amendment doesn't have very many words, but if those words are to retain their meaning, the Ninth Circuit will have to put a check on the government's ability to blacklist its citizens without recourse."