Here's Why the ACLU Is Suing the Government over the No-Fly List—and Winning

You'd think our constitutional expert of a president would have a better grasp of 'due process.'


"Sorry, we're out of due process. Would you like a Diet Coke, instead?"
Credit: Austrian Airlines

Last night, President Barack Obama made it abundantly clear in his speech that his administration is behind the push to deny guns to those who show up on federal no-fly lists. He said, "Congress should act to make sure no one on a no-fly list is able to buy a gun. What could possibly be the argument for allowing a terrorist suspect to buy a semi-automatic weapon? This is a matter of national security."

Obama, a constitutional scholar, knows full well about this little thing called "due process," which prohibits the government from simply depriving people of their rights on the basis of just official suspicion. And he also knows full well that the lack of due process with the no-fly list is causing the Department of Justice and the Department of Homeland Security some serious legal headaches. It's not the National Rifle Association (NRA) that's keeping the administration from depriving people on the no-fly list their rights; it's the American Civil Liberties Union (ACLU).

Rahinah Ibraham is not a suspected terrorist. She was a scholar and doctoral candidate at Stanford University in the United States from Malaysia with a valid student visa. She ended up on the no-fly list on what turned out to be a clerical error. It wasn't even a case of mistaken identity. An FBI agent literally checked the wrong box when filing paperwork in 2004. It took a decade of fighting with the government to fix this problem. Why? Because the system by which the government adds people to the no-fly list has absolutely no transparency or due process in its appeal process. Until this year, the federal government wouldn't even confirm that an individual was even on the no-fly list, which coincidentally made it a challenge to fight one's inclusion. A judge in 2014 ruled that the government violated Ibraham's and others' rights by mistakenly adding them to the no-fly list and refusing to fix the problem.

Ibraham's case wasn't an ACLU case, but the ACLU has filed a lawsuit on behalf of 13 people, including four veterans, who have been placed on the no-fly list and not given appropriate due process procedures to have their names cleared. The ACLU (and others like Ibraham) have gotten a partial victory. The federal government will now actually inform individuals (if they actually ask) whether they are on a no-fly list. If possible, it will provide unclassified "summaries" of their reasons for being on the list.

But that's still not real due process, and the ACLU is not satisfied. They're continuing to challenge the lack of transparency and ability to appeal the no-fly list. From their case page:

 [T]he government still keeps its full reasons secret. It also withholds evidence and exculpatory information from our clients and refuses to give them a live hearing to establish their credibility or cross-examine witnesses. Because of these and other serious problems, the ACLU has challenged the revised process as unconstitutional.

Until the government fixes its unconstitutional new process, people on the No Fly List are barred from commercial air travel with no meaningful chance to clear their names, resulting in a vast and growing group of individuals whom the government deems too dangerous to fly but too harmless to arrest.

The way the federal government under Obama has managed the no-fly list is already a fairly clear violation of our Fifth Amendment right to due process of law. Adding restrictions to the Second Amendment would be yet another violation. Fortunately, the Senate has already said no to what Obama demanded Sunday evening. Unfortunately, every Democrat except for one (Heidi Heitkamp of North Dakota) voted in favor of Obama's blatantly unconstitutional proposal. It's a cynical effort to try to get culture war support, using fear of guns to turn Americans against basic civil liberties.