The No Fly List: Procedural Due Process and
Hurdles to Litigation
Jared P. Cole
Legislative Attorney
September 18, 2014
Congressional Research Service
7-5700
www.crs.gov
R43730
The No Fly List: Procedural Due Process and Hurdles to Litigation
Summary
In order to protect national security, the government maintains various terrorist watchlists,
including the “No Fly” list, which contains the names of individuals to be denied boarding on
commercial airline flights. Travelers on the No Fly list are not permitted to board an American
airline or any flight on a foreign air carrier that lands or departs from U.S. territory or flies over
U.S. airspace. Some persons have claimed that their alleged placement on the list was the result
of an erroneous determination by the government that they posed a national security threat. In
some cases, it has been reported that persons have been prevented from boarding an aircraft
because they were mistakenly believed to be on the No Fly list, sometimes on account of having a
name similar to another person who was actually on the list. As a result, various legal challenges
to placement on the list have been brought in court.
The Department of Homeland Security operates a redress process for people who encounter
difficulties while traveling. The government’s policy, however, is never to confirm or deny
whether someone is on the No Fly list; and the redress process does not provide travelers with an
opportunity to contest their alleged placement on the No Fly list. Instead, the redress process
consists of an administrative review by the government, which can be followed by an ex parte, in
camera judicial review by a United States court of appeals.
The Due Process Clause provides that no person shall be “deprived of life, liberty, or property,
without due process of law.” Accordingly, when a person has been deprived of a constitutionally
protected liberty interest, the government must follow certain procedures. Several courts have
found that placement on the No Fly list may impair constitutionally protected interests, including
the right to travel internationally, and the government’s redress procedures must therefore satisfy
due process. Typically, due process requires that the government provide a person with notice of
the deprivation and an opportunity to be heard before a neutral party. However, the requirements
of due process are not fixed, and can vary according to relevant factors. When determining the
proper procedural protections in a given situation, courts employ the balancing test articulated by
the Supreme Court in Matthews v. Eldridge, which weighs the private interests affected against
the government’s interest. Courts applying this balancing test might consider several factors,
including the severity of the deprivation involved in placement on the No Fly list. In addition,
courts may examine the risk of an erroneous deprivation under the current procedural framework
and the potential value of imposing additional procedures on the process. Finally, courts may
inquire into the government’s interest in preserving the status quo, including the danger of
permitting plaintiffs to access sensitive national security information.
Resolution of the issue is currently pending as at least two federal courts have ruled that the
government’s redress procedures for travelers challenging placement on the No Fly list violate
due process. Litigation is further complicated by several legal hurdles, such as the state secrets
privilege, that can bar plaintiffs from accessing certain information.
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Contents
Introduction ...................................................................................................................................... 1
Background of Government Watchlists ........................................................................................... 2
Terrorist Databases .................................................................................................................... 2
Secure Flight .............................................................................................................................. 5
Redress Process ......................................................................................................................... 6
Select Legal Issues Implicated by the No Fly List .......................................................................... 8
Procedural Due Process ............................................................................................................. 8
Constitutionally Protected Interests..................................................................................... 9
What Process Is Due? ........................................................................................................ 11
Possible Outcomes of the Balancing Test ......................................................................... 16
Hurdles to Litigation ................................................................................................................ 18
Conclusion ..................................................................................................................................... 20
Contacts
Author Contact Information........................................................................................................... 21
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The No Fly List: Procedural Due Process and Hurdles to Litigation
Introduction
The safety of air travel, particularly after the terrorist attacks of September 11, 2001, is an
important priority for the U.S. government. The Aviation and Transportation Security Act of 2001
created the Transportation Security Administration (TSA) and charged it with ensuring the
security of all modes of transportation, including civil aviation.1 The TSA is responsible for
prescreening all potential commercial airline travelers before they board an aircraft.2 Pursuant to
this responsibility, TSA uses the “No Fly” list to identify individuals who pose a threat to aviation
safety. Persons attempting to board an aircraft who are matched to an identity on the No Fly list
are not allowed to board. Recent news reports claim that 47,000 people are currently on the No
Fly list, including 800 Americans.3
However, some persons have claimed that their alleged placement on the list was the result of an
erroneous determination by the government that they posed a national security threat. In some
cases, it has been reported that persons have been prevented from boarding an aircraft because
they were mistakenly believed to be on the No Fly list, sometimes on account of having a name
similar to another person who was actually on the list.4 The Department of Homeland Security
(DHS) operates a redress process for travelers who wish to contest their right to board an aircraft,
but this procedure has been challenged in federal court as violating the Fifth Amendment right to
due process.5 After an adverse ruling in a recent federal district court,6 the executive branch is
apparently revising the process.7 This report will provide an overview of the operation of the
government’s watchlists, examine some of the legal issues implicated by challenges to the No Fly
list, and describe recent case law on the matter.
1 See 49 U.S.C. § 114 (a), (d). The Homeland Security Act of 2002 transferred TSA to the Department of Homeland
Security. See 6 U.S.C. § 203.
2 See DEPARTMENT OF HOMELAND SECURITY, OFFICE OF INSPECTOR GENERAL, ROLE OF THE NO FLY AND SELECTEE LISTS
IN SECURING COMMERCIAL AVIATION 3 (2009).
3 See Adam Goldman, More Than 1 Million People Are Listed in U.S. Terrorism Database, WASHINGTON POST (Aug.
5, 2014) available at http://www.washingtonpost.com/world/national-security/more-than-1-million-people-are-listed-
in-us-terrorism-database/2014/08/05/a66de30c-1ccc-11e4-ab7b-696c295ddfd1_story.html.
4 See, e.g., Mike McIntire, Ensnared by Error on Growing U.S. Watch List, NEW YORK TIMES (April 6, 2010) available
at http://www.nytimes.com/2010/04/07/us/07watch.html?pagewanted=all; U.S. DEPARTMENT OF JUSTICE, OFFICE OF
THE INSPECTOR GENERAL, REPORT TO CONGRESS ON IMPLEMENTATION OF SECTION 1001 OF THE USA PATRIOT ACT 13
(2009).
5 See U.S. CONST. amend. V. Another challenge alleges that Federal Bureau of Investigation (FBI) agents used
placement on the list to coerce Muslims to spy on their communities. See First Amended Complaint, Tanvir v. Holder,
No. 1:13-cv-06951-RA (S.D.N.Y. April 22, 2014) available at http://www.ccrjustice.org/files/
Tanvir%20v%20Comey%2013-cv-6951%20First%20Amended%20Complaint%202014_04_22%20—
%20AS%20FILED.pdf. The plaintiffs alleged violations of their right to due process under the Fifth Amendment, and
violations of the First Amendment, the Religious Freedom Restoration Act, and the Administrative Procedure Act. The
alleged utilization of the No Fly list as a coercive tool is, however, beyond the scope of this report. Instead, this report
focuses on the operation of the No Fly list and legal challenges to placement on the list under the Due Process Clause
of the U.S. Constitution.
6 See Latif v. Holder, 3:10-CV-00750-BR, 2014 WL 2871346 (D. Or. June 24, 2014).
7 See Joint Status Report, Latif v. Holder, 3:10-CV-00750-BR (D. Or. August 4, 2014).
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Background of Government Watchlists
Terrorist Databases
The National Counterterrorism Center (NCTC) serves as the central information bank for the U.S.
government on “known and suspected terrorists and international terrorist groups.”8 It is the
government’s principal organization for “analyzing and integrating” intelligence concerning
terrorism and counterterrorism.9 The NCTC maintains the Terrorist Identities Datamart
Environment (TIDE), the central repository of the U.S. government containing derogatory
information about suspected international terrorists.10 Based on evaluations of intelligence
information, agencies in the intelligence community (IC)11 nominate individuals known or
suspected to be international terrorists and forward the names to the NCTC.12 Using a non-
exclusive list of possible factors, the NCTC determines if each name merits inclusion on the list.13
As of December 2013, according to the NCTC, about 1.1 million persons were included in TIDE,
and about 25,000 were U.S. persons (citizens and lawful permanent residents).14 TIDE contains
all of the government’s information regarding persons “known or appropriately suspected to be or
to have been involved in activities constituting, in preparation for, in aid of, or related to terrorism
(with the exception of purely domestic terrorism information).”15 Due to the national security
importance of this information, the contents of the database are classified.16
The NCTC “exports” an unclassified subset of the data, including biometric and biographic
identifiers, to the Terrorist Screening Center (TSC), which in turn, operates the Terrorist
Screening Database (TSDB).17 In contrast to TIDE (operated by NCTC), the TSDB (operated by
TSC) does not include “derogatory intelligence information.”18 Instead, it consists of “sensitive
but unclassified terrorist identity information consisting of biographic identifying information
8 DEPARTMENT OF HOMELAND SECURITY, OFFICE OF INSPECTOR GENERAL, IMPLEMENTATION AND COORDINATION OF
TSA’S SECURE FLIGHT PROGRAM 4 (2012) [hereinafter 2012 IG REPORT].
9 50 U.S.C. § 3056.
10 See 2012 IG REPORT, supra note 8, at 4.
11 The Intelligence Community includes the Office of the Director of National Intelligence, the Central Intelligence
Agency, the National Security Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency,
the National Reconnaissance Office, other Department of Defense offices, intelligence units of the Armed Forces, the
FBI, the DEA, and DHS, the Bureau of Intelligence and Research of the Department of State, and the Office of
Intelligence and Analysis at the Department of the Treasury. 50 U.S.C. § 30003.
12 See 2012 IG REPORT, supra note 8, at 4.
13 Some examples of conduct that merits entry into TIDE include persons who: engage in, plan, or prepare international
terrorist activity; collect information on targets for terrorist activity; solicit funds for or membership in a terrorist
organization; provide material support for terrorism. GOVERNMENT ACCOUNTABILITY OFFICE, GAO-12-476, TERRORIST
WATCHLIST, ROUTINELY ASSESSING IMPACTS OF AGENCY ACTIONS SINCE THE DECEMBER 25, 2009, ATTEMPTED ATTACK
COULD HELP INFORM FUTURE AGENTS 17-18 (2012) [hereinafter 2012 GAO REPORT]; see Secure Flight Program; Final
Rule, 73 Fed. Reg. 64018-64066 (Oct. 28, 2008).
14 National Counterterrorism Center, Terrorist Identities Datamart Environment Fact Sheet available at
http://www.nctc.gov/docs/tidefactsheet_Aug12014.pdf [hereinafter NCTC Fact Sheet].
15 Id.
16 2012 IG REPORT, supra note 8, at 4.
17 See NCTC FACT SHEET, supra note 14; DEPARTMENT OF HOMELAND SECURITY, OFFICE OF INSPECTOR GENERAL, ROLE
OF THE NO FLY AND SELECTEE LISTS IN SECURING COMMERCIAL AVIATION 5-9 (2009).
18 Mohamed v. Holder, 995 F. Supp. 2d 520, 526 n.8 (E.D. Va. 2014) (E.D. Va. Jan. 22, 2014) (quotations omitted).
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such as name or date of birth or biometric information such as photographs, iris scans, and
fingerprints.”19 Established pursuant to Homeland Security Presidential Directive 6, the TSC is
managed by the Federal Bureau of Investigation (FBI) and receives support from various federal
agencies. The information in the TSDB is obtained from two sources.20 First, as mentioned above,
TIDE provides information on the identity of suspected international terrorists.21 Second, the
FBI’s Automated Case Support System (ACSS) provides additional information on suspected
domestic terrorists directly to the TSC.22
Whether receiving information from TIDE or ACSS, the TSC will review each file to ensure that
it satisfies the government’s watchlist standards before adding the name to the TSDB.23 The
information received by TSC must satisfy two requirements to merit inclusion on the TSDB.24
First, the “biographic information associated with a nomination must contain sufficient
identifying data so that a person being screened can be matched or disassociated from a
watchlisted terrorist.”25 Second, the “facts and circumstances” must “meet the reasonable
suspicion standard of review.”26 This means “articulable facts which, taken together with rational
inferences, reasonably warrant the determination that an individual is known or suspected to be or
19 Id.
20 See Homeland Security Presidential Directive—6, Integration and Use of Screening Information to Protect Against
Terrorism (Sept. 16, 2003). See also Homeland Security Presidential Directive—11, Comprehensive Terrorist-Related
Screening Procedures (Aug. 27, 2004); Homeland Security Presidential Directive—24: Biometrics for Identification
and Screening to Enhance National Security (Jun. 5, 2008).
21 “[I]nternational terrorism” means activities that—
(A) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of
the United States or of any State, or that would be a criminal violation if committed within the
jurisdiction of the United States or of any State;
(B) appear to be intended—
(i) to intimidate or coerce a civilian population;
(ii) to influence the policy of a government by intimidation or coercion; or
(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and
(C) occur primarily outside the territorial jurisdiction of the United States, or transcend national
boundaries in terms of the means by which they are accomplished, the persons they appear intended
to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum.
50 U.S.C. § 2331(1).
22 “[D]omestic terrorism means activities that—
(A) involve acts dangerous to human life that are a violation of the criminal laws of the United
States or of any State;
(B) appear to be intended—(i) to intimidate or coerce a civilian population; (ii) to influence the
policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government
by mass destruction, assassination, or kidnapping; and
(C) occur primarily within the territorial jurisdiction of the United States.
50 U.S.C. § 2331(5).
23 2012 IG REPORT, supra note 8, at 6.
24 Statement of Timothy J. Healy, Director, Terrorist Screening Center, Federal Bureau of Investigation, before the
Committee on Homeland Security and Governmental Affairs, U.S. Senate, The Lessons and Implications of the
Christmas Day Attack: Watchlisting and Pre-screening (Mar. 10, 2010) [hereinafter Healy Statement] available at
http://www.fbi.gov/news/testimony/the-lessons-and-implications-of-the-christmas-day-attack-watchlisting-and-pre-
screening.
25 Id. at 2.
26 Id.
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has been engaged in conduct constituting, in preparation for, in aid of, or related to terrorism and
terrorist activities.”27 This standard was not mandated by statute, but was “adopted by internal
Executive Branch policy and practice.”28 In addition, a recent district court case indicates that
there is a “secret exception to the reasonable suspicion standard,” but the “nature of the exception
and the reasons ... for nomination are claimed to be state secrets.”29
As mentioned above, in contrast to the classified contents of TIDE, the TSDB contains sensitive,
but not classified, information about the identity of suspected terrorists. The unclassified nature of
the list permits a broad range of federal, state, and local organizations to access the data.30
Accordingly, the TSC provides various frontline screening agencies with subsets of the TSDB for
use in combating terrorism. These watchlists are tailored in accordance with the agency’s
mission(s) and statutory authorities.31 For the purposes of monitoring flights, TSA receives two
such lists: the No Fly list and the Selectee list. People on the first are prohibited from boarding an
American airline or any flight that comes in contact with U.S. territory or airspace. Those on the
second are subject to enhanced screening procedures when they attempt to do so.32 The No Fly
and Selectee lists have their own substantive requirements for inclusion, which executive officials
have stated are more stringent than the reasonable suspicion standard for placement on the
TSDB.33 TSC requires “sufficient biographical information and sufficient derogatory
information” for inclusion on the No Fly and Selectee List.34 When a person is placed on the list,
they will not receive notice; instead, they will simply be denied boarding or subjected to
enhanced screening procedures if they attempt to board a plane.35
However, in a departure from the traditional requirements for inclusion on the No Fly list, after
the failed terrorist attack of the so called “underwear bomber,” who attempted to destroy a
commercial plane traveling from Amsterdam to Detroit on Christmas Day 2009, the NCTC and
TSC were ordered to add a number of individuals from the TIDE database to the No Fly list.36
This included a number of “individuals without any information indicating a personal
involvement in terrorism.”37 Accordingly, a number of individuals were placed on the No Fly list
who may not have met the normal standards for inclusion. Subsequently, TSC, in coordination
with the FBI and other intelligence agencies, conducted a review of all the individuals who had
been upgraded. This review was completed more than two years after the original upgrading.38 A
27 Ibrahim v. Department of Homeland Security, No. C 06-00545 WHA, slip op. at 12 (N.D. Cal. Jan. 14, 2014).
28 Id. at 12.
29 Id. at 19.
30 2012 IG REPORT, supra note 8, at 5.
31 The TSC compiles a number of such lists for frontline agencies. These include the Department of State’s Consular
Lookout and Support System (CLASS) for screening of passports and visas, the U.S. Customs and Border Protection
TECS system, the No Fly and Selectee list, the FBI’s National Crime and Information Center’s Known or Suspected
Terrorist File, and the Interagency Border Inspection System.
32 Placement on the Selectee list, which can result in enhanced screening procedures at an airport, may also present an
impediment to travel; however, the legal issues raised by the Selectee list are beyond the scope of this report, which
focuses instead on placement on the No Fly list.
33 Healy Statement, supra note 24, at 4.
34 Id. at 5.
35 See Ibrahim v. Dep’t of Homeland Sec., No. C 06-00545 WHA, slip op. at 13 (N.D. Cal. Jan. 14, 2014).
36 See U.S. DEPARTMENT OF JUSTICE, OFFICE OF THE INSPECTOR GENERAL, AUDIT DIVISION, AUDIT OF THE FEDERAL
BUREAU OF INVESTIGATION’S MANAGEMENT OF TERRORIST WATCHLIST NOMINATIONS (March 2014).
37 Id. at 19.
38 Id. at 23.
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recent Department of Justice (DOJ) Office of Inspector General audit expressed “concerns about
the TSC’s ability to ensure that all watchlist records that were modified as a result of the
attempted attack were reviewed and returned to the appropriate individualized status.”39
The precise guidelines and particular factors the government relies on to place individuals on
terrorist watchlists are not made public. The criteria for placement on the No Fly list, as well as
whether a person is on the No Fly list, are considered “Sensitive Security Information” (SSI) and
have not been publicly released by the federal government.40
Secure Flight
In the past, TSA required aircraft operators to screen passengers by matching data against the No
Fly and Selectee lists.41 Following the release of the 9/11 Commission Report, the Intelligence
Reform and Terrorism Prevention Act of 2004 altered this arrangement by requiring TSA to
conduct the matching itself.42 The act also requires aircraft operators to provide passenger
information to TSA for prescreening purposes.43 TSA issued the Secure Flight Final Rule on
October 28, 2008, implementing the act’s requirements.44 Under the program, TSA requires
aircraft operators to collect Secure Flight Passenger Data (SFPD) from passengers and provide it
to TSA. SFPD includes passengers’ full name, date of birth, and gender.45 The information is
collected when a potential passenger makes a flight reservation. This information must be
provided to TSA about 72 hours prior to the flight. For reservations that occur after this deadline,
aircraft operators must provide the SFPD as soon as possible.
TSA then matches the data with the No Fly and Selectee lists.46 It also has discretion to check
against the TSDB and other watchlists,47 and appears to do so to select certain individuals for
additional screening procedures.48 When TSA identifies a possible match, it contacts the TSC,
which decides if it is a positive match with the TSDB watchlist.49 After the matching process is
39 Id. at 28.
40 News sources report that “Watchlisting Guidance” reportedly used by the government, dated March 2013, has been
published by The Intercept, an online magazine that has published documents it says have been obtained from Edward
Snowden. Spencer Ackerman, How the US’s Terrorism Watchlists Work – And How You Could End Up on One,
THEGUARDIAN.COM (July 24, 2014); Charlie Savage, Over Government Objections, Rules on No-Fly List are Made
Public, NYTIMES.COM (July 23, 2014).
41 Prior to 9/11, aviation security was handled by the Federal Aviation Administration (FAA). The FAA ordered air
carriers not to board certain individuals who were deemed a threat to aviation safety. On 9/11, this “no fly” list
contained 12 names. See NAT’L COMM’N ON TERRORIST ATTACKS UPON THE U.S., THE 9/11 COMMISSION REPORT 83
(2004).
42 P.L. 108-458, 118 Stat. 3638, Dec. 17, 2004 Sec. 4012.
43 Id.
44 Secure Flight Program; Final Rule, 73 Fed. Reg. 64018-64066 (Oct. 28, 2008).
45 2012 IG Report, supra note 8, at 10.
46 Id.
47 See 2012 GAO Report, supra note 13, at 17-18; see also Secure Flight Program; Final Rule, 73 Fed. Reg. 64018-
64066 (Oct. 28, 2008).
48 See 2012 IG REPORT, supra note 8, at 11. Secure Flight screens TSDB records that have a “full name and date of
birth that are not already on the No Fly or Selectee Lists” for this purpose. Id. at 11. See also 2012 GAO REPORT, supra
note 13, at 17-18.
49 See 2012 IG REPORT, supra note 8, at 17-18. For a more thorough examination of the process used to conduct
matching, which may include searching other government databases, see 2012 IG REPORT, supra note 8, at 20-26.
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finished, aircraft operators are provided with a Boarding Pass Printing Result that clears the
passenger for boarding, identifies the passenger for additional screening, or denies the passenger
permission to board.50 In 2012, Secure Flight was estimated to prescreen approximately 2 million
passengers every day.51 As of May 2012, according to the Government Accountability Office
(GAO), the Secure Flight program “has reduced the likelihood of passengers misidentified as
being on the watchlist.”52
Redress Process
A number of travelers who dispute any connection to terrorism have alleged that they have been
denied boarding on commercial aircraft.53 A denial of entry can occur, for example, when a
person’s name and/or date of birth correspond or are similar to the identity of someone in the
government’s watchlist database. The Implementing Recommendations of the 9/11 Commission
Act of 2007 directed DHS to create an Office of Appeals and Redress for people who believe they
have been denied boarding or subjected to heightened screening for security reasons.54 Pursuant
to these requirements, DHS has established the Traveler Redress Inquiry Program (TRIP) to
resolve such issues.55 The program is designed to offer an efficient remedy for travelers who
encounter difficulty with the government’s screening process and to centralize a multiagency
process of reviewing and responding to any traveler complaints.56 Passengers who have been
denied boarding or subjected to additional screening procedures may seek redress by filing a
complaint online or by mailing a complaint form.57 All travelers who do so are assigned a redress
number. If DHS decides that a person seeking redress is a match or near match to an identity
contained in the TSDB, the agency will refer the potential match to the redress unit of the TSC.
TSC then determines if the person is an actual match with the identity of someone in the TSDB.
If the person is determined to be a match, TSC next determines whether the person should
continue to be in the TSDB; and, finally, whether the person should continue to be on the No Fly
or Selectee list.58 Those travelers determined not to match a person in the TSDB are added to the
DHS TRIP Cleared List and receive a corresponding traveler redress number.59 Subsequently, a
traveler may enter his or her redress number when purchasing an airline ticket. If travelers are on
50 Id. at 9-11. For a more complete explanation of how uncertainties are resolved in the matching process, see 2012 IG
REPORT, supra note 8, at 20-26.
51 Id. at 22.
52 2012 GAO REPORT, supra note 13, at 42.
53 See, e.g., Latif v. Holder, 3:10-CV-00750-BR, 2014 WL 2871346 (D. Or. June 24, 2014) (challenge brought by
thirteen plaintiffs denied boarding on flight).
54 P.L. 110-53; codified at 49 U.S.C. § 44926(a). The Intelligence Reform and Terrorism Prevention Act of 2004
required TSA to establish procedures for persons identified as security threats to appeal such determinations. P.L. 108-
458; codified at 49 U.S.C. § 44926(a)(j)(2)(G) & 44909(c)(6)(B).
55 See Department of Homeland Security, One-Stop Travelers’ Redress Process, https://www.dhs.gov/one-stop-
travelers-redress-process; see generally DEPARTMENT OF HOMELAND SECURITY, OFFICE OF INSPECTOR GENERAL,
EFFECTIVENESS OF THE DEPARTMENT OF HOMELAND SECURITY TRAVELLER REDRESS INQUIRY PROGRAM 7-9 (2009).
56 2012 IG REPORT, supra note 8, at 18. DHS TRIP is a department-wide redress process that covers any of the
“department’s component agencies,” including TSA programs as well as Customs and Border Protection. See NCTC
FACT SHEET, supra note 14.
57 Instructions for filing a complaint can be found at https://www.dhs.gov/one-stop-travelers-redress-process.
58 Ibrahim v. Department of Homeland Security, No. C 06-00545 WHA, slip op. at 14 (N.D. Cal. Jan. 14, 2014).
59 2012 IG REPORT, supra note 8, at 18.
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the DHS TRIP Cleared List, they will be cleared by Secure Flight,60 and presumably will receive
authorization to board an aircraft.
When the review process is completed, DHS TRIP sends a letter to travelers notifying them that
the review is complete. The letter, however, does not confirm or deny whether an individual is on
the No Fly list or is in the TSDB.61 Notifications usually provide that travelers may seek judicial
review in a U.S. court of appeals under 49 U.S.C. § 46110.62 That review consists of an ex parte
and in camera examination by the court of the administrative record provided by the government
containing the evidence it relied upon.63 If the court disagrees with the government’s
determination, the court may remand the case to the agency for further consideration.64 Even after
judicial review by a U.S. court of appeals, travelers are never informed of their status on any
watchlist or whether they will be permitted to board an aircraft traveling to, from, or within the
United States in the future.65 Instead, a person on a No Fly list who attempts to board a plane will
simply be denied boarding. The DHS TRIP redress process does not provide travelers with
reasons for inclusion on the list, or a hearing where they might challenge their inclusion on the
list. At no point do travelers have the opportunity “to contest or to offer corrections to the record
on which any such determination may be based.”66 In fact, the “government’s policy is never to
confirm or to deny an individual’s placement on the No Fly list.”67
While the administrative and judicial review process described above has been established—
pursuant to statute—by the government to consider travelers’ complaints, some travelers have
brought legal challenges outside of this process in federal courts, challenging both their alleged
placement on the No Fly list and the adequacy of the government’s redress procedures.68
60 Id.
61 See Latif v. Holder, 969 F. Supp. 2d 1293, 1297 (D. Or. 2013); Mohamed v. Holder, 995 F. Supp. 2d 520, 527 (E.D.
Va. 2014). The government has asserted that its practice of neither confirming nor denying a person’s watchlist status is
conducted pursuant to its “Glomar” policy, see Phillippi v. CIA, 546 F.2d 1009, 1013 (D.C. Cir. 1976), a judicially
recognized exception to FOIA requests seeking national security information. See Defendant’s Memorandum of Law in
Support of Motion for Partial Summary Judgment at 15, Latif v. Holder, No. 3:10-cv-00750-BR (D.Or. Feb. 13, 2013).
62 See Latif v. Holder, 969 F. Supp. 2d 1293, 1297 (D. Or. 2013); Mohamed v. Holder, 995 F. Supp. 2d 520, 527 (E.D.
Va. 2014). A letter will sometimes notify the traveler that he or she may seek further administrative review with DHS.
Id. In that case, the final determination letter will notify the traveler that he or she may seek review in a United States
court of appeals. These letters also do not confirm or deny whether the traveler is or was on a watchlist. See Third Joint
Statement of Stipulated Facts, Latif v. Holder, No. 3:10-cv-00750-BR (D.Or. 2013).
63 Defendants’ Supplemental Brief at 9-10, Latif v. Holder, No. 3:10-cv-00750-BR (D.Or. Oct. 25, 2013).
64 Id. at 7-8.
65 Latif v. Holder, 969 F. Supp. 2d 1293, 1297 (D. Or. 2013).
66 Id. at 1298.
67 Id. at 1305. Exceptions to this policy have been made in rare circumstances. See Federal Bureau of Investigation,
Press Release, International Government Officials not on No Fly List, Oct. 6, 2006 (announcing that two foreign
elected officials were not on the No Fly list).
68 See e.g., Ibrahim v. Department of Homeland Security, 669 F.3d 983 (9th Cir. 2012) (claim brought by foreign
national barred from flying seeking an injunction requiring the government to remove her name from its terrorist
watchlists); Latif v. Holder, 969 F. Supp. 2d 1293, 1296 (D. Or. 2013) (claim brought by citizens and lawful permanent
residents who were not allowed to board an aircraft alleging a violation of their right to procedural due process because
the government failed to deliver post-deprivation notice or a meaningful opportunity to contest inclusion on the No Fly
list).
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Select Legal Issues Implicated by the No Fly List
The Fifth Amendment of the U.S. Constitution provides that no person shall be “deprived of life,
liberty, or property, without due process of law.”69 This protection extends to U.S. citizens and
noncitizens who have sufficient ties to the United States.70 Courts have developed two major legal
doctrines to protect rights and liberty interests under the Due Process Clause—procedural and
substantive due process. “Procedural due process imposes constraints on governmental decisions
which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due
Process Clause of the Fifth or Fourteenth Amendment.”71 As explained below, the particular
procedures required may vary according to the situation.72 Substantive due process encapsulates
the Supreme Court’s notion that the Due Process Clause “provides heightened protection against
government interference with certain fundamental rights and liberty interests.”73 Courts have
found that placement on the No Fly list can potentially implicate procedural or substantive due
process rights.74 However, because claims alleging substantive due process violations are
somewhat underdeveloped as of yet, this report primarily examines procedural due process
claims, which have received more extensive analysis by federal courts.
Procedural Due Process
Some travelers who challenge their placement on the No Fly list and the government’s redress
process have alleged that their right to international travel has been deprived without due process
of law. Courts assessing procedural due process claims first ask “whether the plaintiff has been
deprived of a [constitutionally] protected interest.”75 If so, courts next “consider whether the
procedures used by the government in effecting the deprivation ‘comport with due process.’”76
69 U.S. Const. amend. V. The No Fly list and airport screening procedures might raise equal protection issues as well,
but these issues are beyond the scope of this report.
70 See Verdugo-Urquidez v. United States, 494 U.S. 259, 270-71 (1990) (“[A]liens receive constitutional protections
when they have come within the territory of the United States and developed substantial connections with this
country.”). Aliens outside the country generally lack constitutional protection. Id. at 269 (“[W]e have rejected the claim
that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States.”) But see Ibrahim
v. Department of Homeland Security, 669 F.3d 983, 997 (9th Cir. 2012) (holding that an alien not currently in the
country, but had been lawfully present in the United States for four years before departing the country and being
prevented from returning, had established a “significant voluntary connection” to the United States sufficient to assert
claims under the First and Fifth Amendments).
71 Mathews v. Eldridge, 424 U.S. 319, 332 (1976).
72 The Fourteenth Amendment provides that no state shall “deprive any person of life, liberty, or property, without due
process of law.” U.S. Const. amend. XIV, § 1.
73 Washington v. Glucksberg, 521 U.S. 702, 720 (1997).
74 See infra, notes 86-99 and accompanying text.
75 Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999). See Board of Regents v. Roth, 408 U.S. 564, 570-71
(1972) (“But, to determine whether due process requirements apply in the first place, we must look not to the ‘weight’
but to the nature of the interest at stake. We must look to see if the interest is within the Fourteenth Amendment’s
protection of liberty and property.”) (citations omitted).
76 Ralls Corp. v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 315 (D.C. Cir. 2014) (quoting Am. Mfrs,. 526 U.S. at
59). But see Latif v. Holder, 3:10-CV-00750-BR, 2014 WL 2871346 (D. Or. June 24, 2014) (appearing to include the
recognition of a liberty interest within Matthews’ first step, rather than as a preliminary finding).
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Constitutionally Protected Interests
Placement on the No Fly list can impede one’s ability to travel internationally. While a “right to
travel” is not expressly mentioned in the Constitution, the Supreme Court has recognized a right
to travel as “a part of the ‘liberty’ of which the citizen cannot be deprived without due process of
law under the Fifth Amendment.”77 The right to interstate travel is less susceptible to government
restraint than the right to international travel, as the Court has described the former as “virtually
unqualified.”78 However, the right to international travel is nonetheless a “liberty protected by the
Due Process Clause.”79 Accordingly, the right to international travel is subject to “reasonable
governmental regulations”;80 and not every restriction on a person’s right to travel will raise a
significant due process concern.81 In assessing whether a governmental policy infringes upon
such a right, courts will often examine the scope of the policy and the degree to which it impairs
the ability of a person to feasibly travel.82
Not every impediment to travel is considered a deprivation of a constitutionally protected interest.
In Gilmore v. Gonzales, for example, the U.S. Court of Appeals for the Ninth Circuit rejected a
constitutional challenge to the TSA’s requirement that an airline passenger present identification
before boarding a flight from Oakland to Baltimore-Washington International Airport.83 The court
noted that the plaintiff was barred from only one form of interstate travel, and ruled that the
government’s policy did not violate the plaintiff’s right to interstate travel “because the
Constitution does not guarantee the right to travel by any particular form of transportation.”84 The
court explained that the “burden” of presenting identification was not unreasonable and “other
forms of travel remain[ed] possible.”85
Several federal courts, however, have distinguished certain challenges to placement on the No Fly
list from this case and determined that placement on the No Fly list can deprive someone of a
constitutionally protected liberty interest in international travel.86 For example, one district court
noted that Gilmore concerned a plaintiff’s right to fly within the United States, while placement
on the No Fly list bars international flight.87 While there may be “alternatives to flying for
domestic travel within the continental United States,” the court reasoned, flying is often the only
feasible method of international travel.88 Further, Gilmore concerned a requirement to show
identification in order to board an airline, while placement on the No Fly list bars flying
77 Kent v. Dulles, 357 U.S. 116, 125 (1958).
78 Califano v. Aznavorian, 439 U.S. 170, 176 (1978) (citations omitted) (italics added).
79 Id. See Aptheker v. Secretary of State, 378 U.S. 500, 505–508 (1964).
80 Haig v. Agee, 453 U.S. 280, 306-07 (1981) (citation omitted).
81 See Mackey v. Montrym, 443 U.S. 1 (1979) (states may exercise regulatory powers to deter drunk driving); Miller v.
Reed, 176 F.3d 1202, 1205–1206 (9th Cir. 1999); Cramer v. Skinner, 931 F.2d 1020, 1031 (5th Cir. 1991).
82 See, e.g., Gilmore v. Gonzales, 435 F.3d 1125 (9th Cir. 2006).
83 Id.
84 Id. at 1136.
85 Id. at 1137.
86 See, e.g., Mohamed v. Holder, 995 F. Supp. 2d 520, 522 (E.D. Va. 2014); Ibrahim v. Dep't of Homeland Sec., C 06-
00545 WHA, 2012 WL 6652362 (N.D. Cal. Dec. 20, 2012).
87 Latif v. Holder, 969 F. Supp. 2d 1293, 1303 (D. Or. 2013).
88 Id.
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indefinitely.89 For these courts, placement on the No Fly list is a deprivation of a constitutionally
protected interest, and the government’s procedures must therefore comport with due process.
Another liberty interest that can be implicated by placement on the No Fly list—thus triggering
procedural due process protection—is harm to one’s reputation combined with a denial of a legal
right or status.90 Under this “stigma-plus” doctrine,91 a plaintiff can establish a due process claim
by showing (1) “the public disclosure of a stigmatizing statement by the government, the
accuracy of which is contested” and (2) “the denial of ‘some more tangible interest’ ... or the
alteration of a right or status recognized by state law.”92 For example, one federal district court
found that the plaintiffs, who allegedly had names similar to names on the No Fly list and were
regularly subjected to enhanced screening procedures in view of their fellow travelers, satisfied
the first prong because public association with terrorism was sufficiently stigmatizing.93 However,
the court found that the plaintiffs failed to satisfy the second prong, because they did not show a
“tangible harm.”94 The court noted that the “Plaintiffs do not have a right to travel without any
impediments whatsoever,” and “have not alleged any tangible harm to their personal or
professional lives that is attributable to their association with the No-Fly List, and which would
rise to the level of a Constitutional deprivation of a liberty right.”95
89 Id.
90 See Paul v. Davis, 424 U.S. 693, 709 (1976). Closely related to a liberty interest in international travel, but legally
distinct, is a citizen’s right to reenter the United States. Some federal courts have found that the right of an American
citizen to return to the United States from abroad is a substantive due process right. See Fikre v. F.B.I., 3:13-CV-
00899-BR, 2014 WL 2335343 (D. Or. May 29, 2014); Tarhuni v. Holder, 3:13-CV-00001-BR, 2014 WL 1269655 (D.
Or. Mar. 26, 2014); see also Nguyen v. Immigration and Naturalization Serv., 533 U.S. 53, 67 (2001) (discussing
privileges of U.S. citizenship, including “the absolute right to enter [the] borders” of the United States). Placement on
the No Fly list, under this theory, can infringe upon this right. For example, one district court has ruled that a U.S.
citizen, allegedly placed on the No Fly list while abroad, raised a colorable substantive due process claim related to his
right to reenter the United States. Mohamed v. Holder, 995 F. Supp. 2d 520, 536-37 (E.D. Va. 2014). In that case, the
government argued that the right of reentry applies only to citizens who present themselves at the border, and does not
apply to impediments preventing one’s ability to actually reach the United States. Id. The government asserted that the
plaintiff had never actually been denied entry into the United States, and would be permitted to enter if he found an
alternative mode of transportation (other than flying) that enabled the plaintiff to present himself at a port of entry. The
district court rejected these arguments, concluding that the right of reentry “entails more than simply the right to step
over the border after having arrived there.” Government actions to prevent a citizen from reaching the border, the court
explained, can “infringe” upon the right to reentry. Id.
The outcome of a substantive due process challenge often turns on the level of scrutiny a court uses to examine the
government’s action. See ERWIN CHEMERINSKY, CONSTITUTIONAL LAW, PRINCIPLES AND POLICIES 546-47 (2006).
However, substantive due process challenges to placement on the No Fly list are less developed in federal courts than
claims under procedural due process, as no court appears to have fully adjudicated the issue. One court recognized a
substantive due process right to return to the United States, but ultimately dismissed the claim because the plaintiff had
alternative means to return. See Fikre v. F.B.I., 3:13-CV-00899-BR, 2014 WL 2335343 (D. Or. May 29, 2014).
Another recognized the same right and denied the government’s motion to dismiss. See Tarhuni v. Holder, 3:13-CV-
00001-BR, 2014 WL 1269655 (D. Or. Mar. 26, 2014). Because it is unclear what the proper level of scrutiny is in a
substantive due process challenge to placement on the No Fly list, resolution of the matter is uncertain at this time.
91 See Mead v. Independence Ass'n, 684 F.3d 226, 233 (1st Cir. 2012); Miller v. California, 355 F.3d 1172, 1178 (9th
Cir. 2004).
92 Ulrich v. City & Cnty. of San Francisco, 308 F.3d 968, 982 (9th Cir. 2002) (quoting Paul, 424 U.S. at 701).
93 Green v. Transportation Security Admin., 351 F.Supp.2d 1119, 1129 (W.D. Wa. 2005),
94 Id. at 1130.
95 Id.
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In contrast, another federal district court found that plaintiffs who had actually been prevented
from flying met both factors.96 The first was met because placement on a No Fly list “carries with
it the stigma of being a suspected terrorist that is publicly disclosed to airline employees and other
travelers.”97 The second was met because the plaintiffs suffered a “change in legal status”—they
are legally barred from traveling by air to or from the United States, which they would do had
they not been placed on the No Fly list.98 Nonetheless, another district court, in weighing a
challenge to placement on the No Fly list, found the stigma plus doctrine was not satisfied
because the plaintiff failed to sufficiently allege facts that would “give rise to an inference that the
stigmatizing statements reached the other passengers so as to cause harm to Plaintiff’s
reputation.”99
What Process Is Due?
As explained above, if a court finds that the government has deprived someone of a
constitutionally protected liberty interest—one’s right to international travel, for example—then
the government must provide that person with due process. This usually requires the government
to provide the person with notice of the deprivation100 and an opportunity to be heard101 before a
neutral party.102 The Supreme Court has explained, however, that due process is not a “technical
conception with a fixed content unrelated to time, place, and circumstances.”103 Instead, the
concept is “flexible and calls for such procedural protections as the particular situation
demands.”104 Consequently, the precise type of notice, the manner and time of a hearing, and the
identity of the decision maker can vary according to the situation. When determining the proper
procedural protections in a given situation, courts will weigh the private interests affected against
the government’s interest. In Matthews v. Eldridge, the Supreme Court articulated the balancing
test for deciding what procedural protections are required when the government deprives
someone of life, liberty, or property.105 A court must examine three broad factors:
First, the private interest that will be affected by the official action; second, the risk of an
erroneous deprivation of such interest through the procedures used, and the probable value, if
any, of additional or substitute procedural safeguards; and finally, the Government’s interest,
including the function involved and the fiscal and administrative burdens that the additional
or substitute procedural requirement would entail.106
Therefore, as explained more fully below, when a court confronts a challenge to a governmental
deprivation of a constitutionally protected liberty interest, a court will balance each of these
factors in order to determine what procedural protections due process requires.
96 Latif v. Holder, No. 3:10-cv-00750-BR, 2014 WL 2871346 (D.Or. Jun. 24, 2014).
97 Id. at *12.
98 Id.
99 See Tarhuni v. Holder, 3:13-CV-00001-BR, 2014 WL 1269655 at *14 (D. Or. Mar. 26, 2014).
100 Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 542 (1985).
101 Goldberg v. Kelly, 397 U.S. 254, 263-64 (1970).
102 Hamdi v. Rumsfeld, 542 U.S. 507, 533 (2004).
103 Cafeteria Workers v. McElroy, 367 U.S. 886, 895 (1961).
104 Morrissey v. Brewer, 408 U.S. 471, 481 (1972).
105 Matthews v. Eldridge, 424 U.S. 319, 334 (1976).
106 Id. at 335.
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Plaintiff’s Interest
As explained above, the right to international travel is a constitutionally protected liberty interest
that some courts have found to be infringed by placement on the No Fly list.107 In assessing a
procedural due process challenge to the governmental procedures when a person’s liberty is
infringed, courts will first weigh the private interest affected by the government’s action. In
assessing the significance of the deprivation, the Supreme Court has examined a number of
different factors, including the severity, length, and the finality of a deprivation.108 For example,
the Court has found the termination of welfare benefits—which are based on financial need—to
be more severe than the termination of disability benefits, which are not.109 In the latter case, the
Court has ruled, less procedural protections are required.110 Similarly, the Court has noted the
difference between absolute termination and a temporary suspension from one’s employment.111
Again, the latter requires less procedural protections.112
The weight given the private interest by courts weighing challenges to placement on the No Fly
list might turn on the level of generality the court uses to interpret the deprivation. One might
argue, for example, that for most people, air travel is often the only feasible method for
international travel available.113 Arguably, placement on the No Fly list can effectively bar
someone from traveling internationally.114 Analyzing the deprivation in this manner might point
towards finding the deprivation of a significant liberty interest. In contrast, one might characterize
placement on a No Fly list as limited to a restriction on a person’s “preferred method of travel,”
rather than the ability to travel at all.115 In litigation concerning the No Fly list, the DOJ has
argued that “[t]he Constitution does not guarantee ... a right to the most convenient means of
travel, nor does it create a liberty interest in travel by airplane in particular.”116 Following this line
of argument, because a person on the No Fly list is not barred from travel entirely, the deprivation
is of a less significant liberty interest.
107 Challenges to No Fly list placements that only burden the right to interstate travel – rather than international – might
be less likely to raise a due process issue because of the availability of alternative modes of transportation for interstate
travel. See Tarhuni v. Holder, 3:13-CV-00001-BR, 2014 WL 1269655 at *12 (D. Or. Mar. 26, 2014); Gilmore v.
Gonzales, 435 F.3d 1125, 1137 (9th Cir. 2006).
108 See Gilbert v. Homar, 520 U.S. 924, 932 (1997) (“But while our opinions have recognized the severity of depriving
someone of the means of his livelihood ... they have also emphasized that in determining what process is due, account
must be taken of ‘the length’ and ‘finality of the deprivation.’”) (quoting Logan v. Zimmerman Brush Co., 455 U.S.
422, 434 (1982)).
109 Compare Goldberg v. Kelly, 397 U.S. 254 (1970) (welfare benefits) with Matthews v. Eldridge, 424 U.S. 319
(1976) (disability benefits).
110 Matthews, 424 U.S. at 340.
111 Compare Gilbert v. Homar 520 U.S. 924 (1997) (temporary suspension) with Cleveland Bd. of Educ. v. Loudermill,
470 U.S. 532 (1985) (termination).
112 Loudermill, 470 U.S. at 932.
113 See, e.g., Tarhuni v. Holder, 3:13-CV-00001-BR, 2014 WL 1269655 at *11 (D. Or. Mar. 26, 2014); Latif v. Holder,
969 F. Supp. 2d 1293, 1303 (D. Or. 2013).
114 See Tarhuni v. Holder, 3:13-CV-00001-BR, 2014 WL 1269655 at *11 (D. Or. Mar. 26, 2014).
115 Reply Memorandum in Support of Defendants’ Motion for Partial Summary Judgment at 12, Latif v. Holder, No.
3:10-cv-00750-BR (D. Ore. Mar. 26, 2013).
116 Id. at 11.
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Risk of Erroneous Deprivation and Value of Additional Procedures
A court would next examine the risk of an erroneous deprivation of liberty under the current
procedural framework and the potential value of imposing additional procedures on the
process.117 Put another way, a court would investigate how likely it is that someone would be
incorrectly placed on the No Fly list, and how helpful requiring different procedures would be in
preventing such errors.
In analyzing the risk of error, a court might examine both the standard used by the government to
make its initial decision to place someone on the No Fly list, as well as the procedures currently
afforded travelers via DHS TRIP, including its judicial review provision.118 One factor courts
examine in weighing the risk of error is the amount of discretion afforded the decision maker. For
example, the Supreme Court has distinguished between a deprivation based on a medical
assessment and one predicated on a variety of disparate information including “witness credibility
and veracity.”119 For the Court, the latter situation involves a greater risk of error than the
former.120 Another factor might be the standard of proof required for the government to deprive
someone of liberty. For example, the Court has held that before a state may permanently sever a
parent’s relation with a child, a state must meet a higher evidentiary threshold than “fair
preponderance of the evidence.”121
Yet another factor is the ability to see and challenge the evidence relied on to justify a
deprivation.122 In the context of a security clearance revocation that resulted in the impairment of
a plaintiff’s job opportunities, the Supreme Court stressed that “where governmental action
seriously injures an individual, and the reasonableness of the action depends on fact findings, the
evidence used to prove the Government’s case must be disclosed to the individual so that he has
117 Matthews, 424 U.S. at 335.
118 See Latif v. Holder, 3:10-CV-00750-BR, 2014 WL 2871346 at *13-16 (D. Or. June 24, 2014).
119 Compare Goldberg v. Kelly, 397 U.S. 254, 269 (1970) with Matthews v. Eldridge, 424 U.S. 319, 343-44 (1976).
120Matthews, 424 U.S. at 343-45.
121 Santosky v. Kramer, 455 U.S. 745, 761-64 (1982).
122 In Nat'l Council of Resistance of Iran v. Dep't of State, 251 F.3d 192 (D.C. Cir. 2001), the D.C. Circuit examined
the Secretary of State’s designation of an entity to be a Foreign Terrorist Organization under the Anti-Terrorism and
Effective Death Penalty Act. The relevant judicial review provision did not permit the entity to “access, comment on,
or contest the critical material.” Id. at 197. The court ruled that this review was not sufficient to satisfy due process.
The court required the Secretary to provide the entity with the unclassified material to be used to make the designation
and “the opportunity to present, at least in written form, such evidence as those entities may be able to produce to rebut
the administrative record or otherwise negate the proposition that they are foreign terrorist organizations.” Id. at 208-
209. See People’s Mojahedin Organization of Iran v. U.S. Dep’t of State, 613 F.3d 220, 227-28 (D.C. Cir. 2010)
(similar holding). In Al Haramain Islamic Foundation, Inc. v. U.S. Dep’t of Treasury, 686 F.3d 965, 983 (9th Cir.
2011), the Ninth Circuit examined the procedures used when the Office of Foreign Assets Control designated an entity
to be a “specially designated global terrorist.” Id. at 970. The court noted the high risk of error when the government
relies upon classified information without disclosure and held that the government must, at least when it does not
implicate national security, provide the entity with mitigation measures such as unclassified summaries of information
or permitting counsel with an appropriate security clearance to access the material. Id. at 982-83. In Jifry v. F.A.A., 370
F.3d 1174 (D.C. Cir. 2004), however, the D.C. Circuit upheld a process wherein plaintiffs did not receive the materials
explaining the factual basis for the government’s deprivation. Id. at 1184. In that case, the Federal Aviation
Administration revoked the airman certificates of two nonresident alien pilots because they presented a security risk. Id.
at 1177. After noting that the pilots’ interest in a possessing certificates to fly foreign aircraft “pales in significance to
the government’s security interests in preventing pilots from using civil aircraft as instruments of terror,” the court
ruled that notice to the plaintiffs and the opportunity to present their own evidence to rebut the record – without a
chance to view the underlying facts – satisfied due process. Id. at 1183-84.
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an opportunity to show that it is untrue.”123 Likewise, in the disability benefits context, the Court
has noted the important “safeguard against mistake” of permitting access to the government’s
information and the reasons for the government’s action, as well as the ability of a claimant to
submit his own arguments and challenge the accuracy of the government’s conclusion.124 Finally,
in the context of considering the government’s detention of a U.S. citizen in an armed conflict,
the Supreme Court has ruled that a process where “the Executive’s factual assertions go wholly
unchallenged or are simply presumed correct without any opportunity ... to demonstrate otherwise
falls constitutionally short.”125 When a “citizen-detainee ... challenge[s] his classification as an
enemy combatant [he] must receive fair notice of the factual basis for his classification, and a fair
opportunity to rebut the Government’s factual assertions before a neutral decisionmaker.”126
Some plaintiffs who have challenged their alleged placement on the No Fly list have argued both
that the current standard used to place someone on a No Fly list entails a high risk of error, and
that the current procedure afforded those seeking to challenge their placement on the No Fly list
creates a high risk of an erroneous deprivation.127 There is arguably a considerable amount of
discretion involved in making the determination that someone is a danger to aviation safety. In
addition, if the government has faulty information, a traveler does not have the opportunity to
evaluate the evidence against her or to present her own evidence to correct the record. Some
courts have noted government studies that document numerous errors with the operation of the
watch lists;128 and media accounts have highlighted mistaken placements on the No Fly list.129
The executive branch has argued, however, that such studies predate the current methods used
under the Secure Flight program, which has reduced the number of travelers wrongly denied
boarding.130 In addition, DHS TRIP does provide a redress process, which can be appealed to a
United States court of appeals.131 One might argue that this opportunity for judicial review of the
agency’s determination is sufficient to prevent erroneous deprivations.
Government’s Interest
Finally, a court would examine the government’s interest in the matter and the cost of imposing
additional procedures. The government has a strong interest in preventing terrorism, which
includes ensuring the safety of air travel.132 The operation of the No Fly list arguably is an
important tool to do so.133 The government also has an interest in protecting sensitive national
123 Greene v. McElroy, 360 U.S. 474, 496 (1959).
124Matthews, 424 U.S. at 345-46.
125 Hamdi v. Rumsfeld, 542 U.S. 507, 537 (2004).
126 Id. at 533.
127 See Latif v. Holder, 3:10-CV-00750-BR, 2014 WL 2871346 (D. Or. June 24, 2014).
128 See, e.g., Ibrahim v. Department of Homeland Security, 669 F.3d 983, 990 (9th Cir. 2012); Latif v. Holder, 969 F.
Supp. 2d 1293, 1306 (D. Or. 2013). See also U.S. DEPARTMENT OF JUSTICE, OFFICE OF THE INSPECTOR GENERAL,
REPORT TO CONGRESS ON IMPLEMENTATION OF SECTION 1001 OF THE USA PATRIOT ACT 13 (2009).
129 See, e.g., Mike McIntire, Ensnared by Error on Growing U.S. Watch List, NEW YORK TIMES (April 6, 2010)
available at http://www.nytimes.com/2010/04/07/us/07watch.html?pagewanted=all.
130 Latif v. Holder, 969 F. Supp. 2d 1293, 1306 (D. Or. 2013); see 2012 GAO Report, supra note 13.
131 See 49 U.S.C. § 46110.
132 See e.g., Latif v. Holder, 3:10-CV-00750-BR, 2014 WL 2871346 at *16 (D. Or. June 24, 2014).
133 The chair of the Senate Intelligence Committee, Dianne Feinstein, has remarked that the No Fly list is “one of our
best lines of defense” in preventing terrorism. Scott Shane, Senators Demand Tighter Rules on No-Fly List and
(continued...)
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security information. The executive branch has argued that “protecting TSDB information enables
agencies to share that information across the government, without fear that it will be disclosed
whenever anyone sues after he or she cannot travel as he or she might choose.”134 Requiring DHS
to reveal classified information through this process, even to the complainant, could “damage ...
national security, including by jeopardizing intelligence sources and methods.”135
Accordingly, the danger to the public of disclosing certain material might, in some observers’
view, outweigh the benefit to the plaintiff. Indeed, the executive branch has argued that
“opportunities for confrontation and rebuttal are not absolute requirements of due process,
particularly where the information upon which the government acts is highly sensitive.”136 More
generally, courts have sometimes been reluctant to require the executive branch to release
information that implicates national security concerns.137 In cases bringing procedural due
process claims that concern sensitive materials outside of No Fly list challenges, courts have
often declined to require the government to release classified information directly to the
plaintiff.138
Nonetheless, as explained below, one federal district court—in ruling on a challenge to placement
on the No Fly list—has signaled that permitting a plaintiff’s counsel with proper security
clearances to access the government’s evidence might alleviate some national security
concerns.139 However, in contexts outside of challenges to the No Fly list, some courts have
declined to interpret this possibility as foreclosing the government’s interest in protecting national
security. As the Seventh Circuit explained recently, counsel might, “in their zeal to defend their
client ... inadvertently say things that would provide clues to classified material.”140 In contrast,
other courts, including the Ninth Circuit, have approved this procedure, at least in appropriate
circumstances.141 Finally, one alternative used in other national security contexts is a requirement
(...continued)
Addition to Terror Group List, NEW YORK TIMES (May 11, 2010) available at http://www.nytimes.com/2010/05/12/
world/americas/12investigate.html?_r=0.
134 Defendants’ Supplemental Brief at 12, Latif v. Holder, No. 3:10-cv-00750-BR (D.Or. Oct. 25, 2013).
135 Id.
136 Defendants’ Supplemental Brief at 13, Latif v. Holder, No. 3:10-cv-00750-BR (D.Or. Oct. 25, 2013) (citing Jiffrey
v .FAA, 370 F.3d 1174, 1183-84 (D.C. Cir. 2004)).
137 See, e.g., United States v. Reynolds, 345 U.S. 1, 10 (1953); Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070 (9th
Cir. 2010); El-Masri v. United States, 479 F.3d 296 (4th Cir. 2007).
138 See, e.g., Ralls Corp. v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 319 (D.C. Cir. 2014); Al Haramain Islamic
Foundation, Inc. v. U.S. Dep’t of Treasury, 686 F.3d 965, 980-81 (9th Cir. 2011); Holy Land Found. for Relief & Dev.
v. Ashcroft, 333 F.3d 156, 164 (D.C. Cir. 2003); People’s Mojahedin Org. of Iran v. Dep't of State, 327 F.3d 1238,
1242 (D.C. Cir. 2003); Nat'l Council of Resistance of Iran v. Dep't of State, 251 F.3d 192, 208-09 (D.C. Cir. 2001); see
generally Global Relief Found., Inc. v. O'Neill, 315 F.3d 748, 754 (7th Cir. 2002).
139 See Latif v. Holder, 3:10-CV-00750-BR, 2014 WL 2871346 at *23-24 (D. Or. June 24, 2014).
140 United States v. Daoud, 755 F.3d 479, 484 (7th Cir. 2014) supplemented, 14-1284, 2014 WL 3734136 (7th Cir. July
14, 2014). See United States v. El-Mezain, 664 F.3d 467, 468 (5th Cir. 2011).
141 See Al Haramain Islamic Foundation, Inc. v. U.S. Dep’t of Treasury, 686 F.3d 965, 983 (9th Cir. 2011); KindHearts
for Charitable Humanitarian Dev., Inc. v. Geithner, 710 F. Supp. 2d 637, 660 (N.D. Ohio 2010) (“If declassification or
summarization of classified information is insufficient or impossible, then KindHearts’ counsel will obtain an adequate
security clearance to view the necessary documents, and will then view these documents in camera, under protective
order, and without disclosing the contents to KindHearts.”).
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that the government provide unclassified summaries of particular information to a plaintiff, rather
than the classified material itself.142
In addition, specific forms of procedural protections might compromise national security more
than others. A requirement that the government provide prior notice to anyone placed on a No Fly
list and a pre-deprivation hearing where both sides presented evidence might “aid terrorists in
their plans to bomb and kill Americans” by providing advance notice to all suspected terrorists.143
More generally, the Supreme Court has recognized that a pre-deprivation hearing is not necessary
in certain situations, for example, those implicating substantial national security concerns144 or
public safety.145
Possible Outcomes of the Balancing Test
Judicial resolution of a due process challenge requires a balancing of all three factors to
determine what process is due. Several federal district courts have directly addressed challenges
to placement on the No Fly list which allege that the government’s procedures violate due
process.146 In a case in the Northern District of California, a federal court ruled on a claim
brought by Rahinah Ibrahim, a Malaysian national who was present in the United States under a
student visa in 2005, when she was prevented from boarding a plane to Malaysia and temporarily
detained for several hours. During the trial, the government admitted that it had mistakenly placed
her on the No Fly list. The court ruled that when the government mistakenly places someone on a
No Fly list, due process “requires the government to cleanse and/or correct its lists and records of
the mistaken information and to certify under oath that such correction(s) have been made.”147 In
addition to ordering this remedy, the judge also directed the government to reveal to the plaintiff
whether she was currently on the No Fly list.148 At least in this situation, the court ruled, where a
plaintiff is mistakenly placed on the No Fly list, the current redress procedures under DHS TRIP
did not satisfy due process.149 However, the scope of the ruling is rather narrow. The court
142 See Al Haramain Islamic Foundation, Inc. v. U.S. Dep’t of Treasury, 686 F.3d 965, 982-83 (9th Cir. 2011). In the
criminal context, this procedure is authorized under the Classified Information Procedure Act. See 18 U.S.C.A. § 4
(“The court, upon a sufficient showing, may authorize the United States to delete specified items of classified
information from documents to be made available to the defendant through discovery under the Federal Rules of
Criminal Procedure, to substitute a summary of the information for such classified documents, or to substitute a
statement admitting relevant facts that the classified information would tend to prove.”).
143 Ibrahim v. Dep’t of Homeland Sec., slip op. at 29, No. 3:06-cv-00545-WHA (N.D. Ca. Jan. 14, 2014).
144 Haig v. Agee, 453 U.S. 280, 309 (1981); see also Palestine Information Office v. Shultz, 853 F.2d 932, 942-43
(D.C. Cir.1988); Global Relief Found., Inc. v. O'Neill, 315 F.3d 748, 754 (7th Cir. 2002).
145 Mackey v. Montrym, 443 U.S. 1, 19 (1979).
146 49 U.S.C. § 46110 provides that a person challenging a TSA order may petition a United States court of appeals for
review. Some courts have determined that challenges to the No Fly list may nonetheless be brought in federal district
court. See Ibrahim v. Dep't of Homeland Sec., 538 F.3d 1250 (9th Cir. 2008); Mohamed v. Holder, No. 1:11-cv-00050-
AJT-TRJ (4th Cir. May 28, 2013). Others have concluded that challenges are proper in the United States courts of
appeals. See Scherfen v. United States Dep't of Homeland Sec., 2010 U.S. Dist. LEXIS 8336 (M.D. Penn 2010)
(distinguishing Ibrahim as “focused solely on the question of whether placement on the No Fly List fell within §
46110,” while the case at hand followed the receipt of a TRIP determination letter); Tooley v. Bush, CIV.A. 06-306,
2006 WL 3783142 (D.D.C. Dec. 21, 2006) rev'd in part sub nom. Tooley v. Napolitano, 556 F.3d 836 on reh'g, 586
F.3d 1006 (D.C. Cir. 2009) and aff'd sub nom. Tooley v. Napolitano, 586 F.3d 1006 (D.C. Cir. 2009).
147 Ibrahim v. Dep’t of Homeland Sec., Case3:06-cv-005450WHA, slip op. at 2 (N.D. Ca. Jan 14, 2014) (summary of
order).
148 Id.
149 Ibrahim v. Dep’t of Homeland Sec., Case3:06-cv-00545-WHA, slip op. at 31 (N.D. Ca. Jan. 14, 2014).
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explained that its ruling was limited to a situation where the government admits that it has
mistakenly placed a traveler on the list. The court left open situations where the government had
not conceded error.150
In contrast, a federal district court in Oregon ruled that the government’s procedures violated due
process in a case where the government did not appear to concede error. In Latif v. Holder, the
plaintiffs had been barred from flying and submitted complaints via the DHS TRIP process;
pursuant to the procedures described above, the government’s reply did not confirm or deny
whether they were on a No Fly list or provide any reason why plaintiffs could not board an
aircraft.151 The court found that the plaintiffs had “constitutionally-protected liberty interests in
traveling internationally by air, which are significantly affected by being placed on the No-Fly
list.”152 The court conducted a Matthews balancing test and concluded that the DHS TRIP process
failed to provide due process.153 The court noted the various harms that can result from being
denied boarding on international flights and concluded that the deprivation was “significant.”154
Turning to the second Matthews factor, the court noted a “fundamental flaw” of the procedures in
both the DHS TRIP and judicial review process: a low evidentiary standard—reasonable
suspicion—sufficient to be placed on the No Fly list, combined with a one sided review
process.155 Taken together, the court found, these aspects made it likely that factual errors in the
government’s record could go uncorrected. Therefore, the court concluded, the government’s
procedures “contain[ed] a high risk of erroneous deprivation” of the plaintiffs’ liberty interests.156
Further, the court found, providing notice of inclusion on the list, a list of reasons for placement
on the list, and/or the opportunity to present exculpatory evidence “would have significant
probative value in ensuring that individuals are not erroneously deprived of their constitutionally-
protected liberty interests.”157 On the other hand, the court recognized the significant government
interest in national security, the third Matthews factor.158 Nonetheless, the court noted that certain
procedural protections were possible that did not endanger national security, such as providing
summaries of classified information or permitting defense counsel with appropriate clearances to
access sensitive material.159
Consequently, the court held that “the absence of any meaningful procedures” to contest
plaintiffs’ placement on the No Fly list violated due process.160 The court ordered the government
to “fashion new procedures” that satisfied due process, including notifying the plaintiffs whether
or not they were on the No Fly list and “the reasons for placement on that List.”161 That notice
150 Id. at 30.
151 Latif v. Holder, 3:10-CV-00750-BR, 2014 WL 2871346 (D. Or. June 24, 2014).
152 Id. at *11.
153 Id. at *9-24. The district court described the first Matthews step as including (1) a recognition of a liberty interest
and (2) a weighing of that interest “against the other factors.” Id. at *11.
154 Id. at *12. In addition, the court concluded that the injury to the plaintiffs’ reputations from being placed on the
list—though somewhat limited in scope because disclosure was limited to those individuals near the traveler in the
airport—implicated the plaintiffs’ “interests in their reputations.” Id. at *12-13.
155 Id. at *15.
156 Id.
157 Id. at *16.
158 Id.
159 Id. at *23-24.
160 Id. at *24.
161 Id.
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must be sufficient to provide the plaintiffs with a meaningful opportunity to respond, and that
response must be taken into account at both the judicial and administrative review stages.162
However, the court left the precise type of procedures up to the government and allowed for the
possibility that such disclosure might “create an undue risk to national security.”163 That
determination, however, had to be made on a case-by-case basis.164
Hurdles to Litigation
As explained above, some travelers have challenged their alleged placement on the No Fly list
and the government’s redress process in federal court outside of the DHS TRIP review
mechanism. However, governmental privileges barring disclosure of sensitive information present
hurdles for plaintiffs.165 In No Fly list cases brought in federal courts, a number of common law
and statutory privileges have been invoked by the government to bar a plaintiff’s access to certain
information via discovery, including the state secrets, law enforcement, and deliberative process
privileges.166 When properly invoked and accepted by courts, these privileges can prevent
plaintiffs from examining certain sensitive information potentially relevant to their case,
potentially impeding their ability to challenge placement on the list. For example, the state secrets
privilege is an evidentiary privilege that allows the government to withhold information during
civil litigation if there is a reasonable danger that disclosure would endanger national security.167
If the government invokes the privilege during litigation, the court will then make an independent
determination of the validity of the claim, possibly via in camera review of the relevant
materials.168 If the court is satisfied that the privilege applies, that information will be unavailable
to the plaintiff.169
Recently, in a case challenging a plaintiff’s placement on the No Fly list, the government invoked
the state secrets privilege and moved to dismiss the case entirely.170 The government claimed that
the privilege applied both to the “sensitive policies and procedures used in the watchlisting
process” and any substantive underlying information regarding the reasons for placement on the
No Fly list.171 According to the government, this precluded any consideration of the adequacy of
the redress process,172 as well as a full inquiry into “the possibility of substitute procedures.”173
162 Id.
163 Id.
164 Id. In a filing with the court on September 4, 2014, the DOJ indicated that it did “not intend to seek an appeal” of
this order “at this time.” Supplemental Joint Status Report at 3, Latif v. Holder, No. CV 10-00750-BR (D. Or. Sept. 4,
2014).
165 These privileges would not be invoked within the DHS TRIP process itself because that review mechanism never
reveals information to the traveler beyond the status of the review process.
166 See, e.g., Ibrahim v. Dep't of Homeland Sec., C 06-00545 WHA, 2014 WL 1493561 at *2 (N.D. Cal. Apr. 16,
2014).
167 See U.S. v. Reynolds, 345 U.S. 1, 10 (1953); see also CRS Report R41741, The State Secrets Privilege: Preventing
the Disclosure of Sensitive National Security Information During Civil Litigation, by Todd Garvey and Edward C. Liu.
168 See Reynolds, 345 U.S. at 8.
169 See id. at 9.
170 See Defendant’s Memorandum in Support of Their Motion to Dismiss Plaintiff’s Complaint as a Result of the
Assertion of the State Secrets Privilege, Mohamed v. Holder, No. 1:11-cv-0050 (E.D. Va. May 28, 2014).
171 Id. at 11.
172 Id.
173 Id. at 12.
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Indeed, “any attempt to litigate how these nomination procedures were applied in this case ...
risks disclosure of the privileged information.”174 In addition, the government argued that due to
the potential for sensitive matters to be probed via discovery, “future proceedings will inherently
put the privileged information at risk of being disclosed.”175 Accordingly, the government moved
to dismiss the case entirely.176
The law enforcement privilege has also been invoked by the government in challenges to
placement on the No Fly list.177 The purpose of the privilege is “to prevent disclosure of law
enforcement techniques and procedures, to preserve the confidentiality of sources, to protect
witnesses and law enforcement personnel, to safeguard the privacy of individuals involved in an
investigation, and otherwise to prevent interference with an investigation.”178 The investigation is
not required to be ongoing, as disclosure of past tactics might impair future investigations.179
However, the privilege is not absolute: “[t]he public interest in nondisclosure must be balanced
against the need of a particular litigant for access to the privileged information.”180 In order to
conduct this balancing test, courts often examine an extensive list of factors.181 Courts may
examine the evidence in camera in order to determine if the privilege applies and balance the
litigant’s need against the public interest in nondisclosure.182 If a court determines that the
privilege applies, then that information will not be available to the defendant. In No Fly list cases,
the executive branch has asserted this privilege over a “plaintiff’s status on any terrorist database
174 Id.
175 Id. at 14.
176 Id. The case is currently pending in the district court.
177 See, e.g., Ibrahim v. Dep't of Homeland Sec., C 06-00545 WHA, 2014 WL 1493561 (N.D. Cal. Apr. 16, 2014).
178 In re Dep't of Investigation of City of New York, 856 F.2d 481, 484 (2d Cir. 1988). See also Aspin v. Dep't of
Defense, 491 F.2d 24, 29-30 (D.C.Cir.1973); Frankel v. Securities and Exchange Commission, 460 F.2d 813, 817 (2d
Cir. 1972); Ibrahim v. Dep't of Homeland Sec., C 06-00545 WHA, 2014 WL 1493561 (N.D. Cal. Apr. 16, 2014).
179 See In re The City of New York, 607 F.3d 923, 944 (2d Cir. 2010); see also Nat'l Congress for P.R. Rights ex rel.
Perez v. City of N.Y., 194 F.R.D. 88, 95 (S.D.N.Y.2000); Halpern v. FBI, 181 F.3d 279, 294 (2d Cir.1999).
180 In re Sealed Case, 856 F.2d 268, 272 (D.C. Cir. 1988); see also In re The City of New York, 607 F.3d 923, 945 (2d
Cir. 2010).
181 One district court summarized the law as follows:
In deciding whether the privilege should apply, courts typically balance the following factors:
“(1) the extent to which disclosure will thwart governmental processes by discouraging citizens
from giving the government information; (2) the impact upon persons who have given information
of having their identities disclosed; (3) the degree to which governmental self-evaluation and
consequent program improvement will be chilled by disclosure; (4) whether the information sought
is factual data or evaluative summary; (5) whether the party seeking the discovery is an actual or
potential defendant in any criminal proceeding either pending or reasonably likely to follow from
the incident in question; (6) whether the police investigation has been completed; (7) whether any
intradepartmental disciplinary proceedings have arisen or may arise from the investigation; (8)
whether the plaintiff’s suit is non-frivolous and brought in good faith; (9) whether the information
sought is available through other discovery or from other sources; and (10) the importance of the
information sought to the plaintiff’s case.’”
S.E.C. v. Gowrish, C 09-05883 SI, 2010 WL 1929498 (N.D. Cal. May 12, 2010) (quoting Frankenhauser v.
Rizzo, 59 F.R.D. 339, 344 (E.D.Pa.1973), overruled on other grounds, Startzell v. City of Phila., No. 05–
05287, 2006 WL 2945226 (E.D.Pa. Oct.13, 2006)). See also Friedman v. Bache Halsey Stuart Shields, Inc.,
738 F.2d 1336, 1342 (D.C. Cir. 1984) (invoking the same factors).
182 See, e.g., In re The City of New York, 607 F.3d 923, 948 (2d Cir. 2010).
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and the policies and procedures used for determining how an individual’s name is placed in such
a database.”183
Similarly, the deliberative process privilege has been invoked by the executive branch in
challenges to placement on the No Fly list.184 The privilege allows the government to withhold
material that “reflect[] advisory opinions, recommendations and deliberations comprising part of
a process by which governmental decisions and policies are formulated.”185 In order to qualify,
documents must be “predecisional” and “deliberative.”186 A document qualifies as the former if it
“was prepared in order to assist an agency decisionmaker in arriving at his decision,” and the
latter if its release would “expose an agency’s decisionmaking process in such a way as to
discourage candid discussion within the agency and thereby undermine the agency’s ability to
perform its functions.”187 As with the other privileges, however, its invocation by the government
is not absolute. A plaintiff “may obtain deliberative materials if his or her need for the materials
and the need for accurate fact-finding over-ride the government’s interest in non-disclosure.”188 In
the No Fly list context, this privilege might be invoked in an attempt to withhold documents used
in certain decision-making processes, such as whether to place an individual on the No Fly list.
Finally, TSA has statutory discretion to designate certain material as “sensitive security
information,” or “information obtained ... in the conduct of security activities ... the disclosure of
which TSA has determined would ... [b]e detrimental to the security of transportation.”189 Such
information is “not available for public inspection,”190 and the government has claimed
exemptions from disclosure at trial on this basis.191 Nonetheless, as with the privileges discussed
above, plaintiffs and their counsel can access information in certain circumstances.192
Conclusion
Properly balancing the important national security interest of preventing terrorist attacks with the
civil liberties of travelers prevented from boarding a plane is a complicated and delicate matter.
Operation of the government’s No Fly list implicates a wide variety of statutory and constitutional
issues. As more challenges to the No Fly list are adjudicated in courts, the redress process for
travelers might change considerably. Ultimately, if federal courts reach disparate rulings on the
183 See, e.g., Ibrahim v. Dep't of Homeland Sec., C 06-00545 WHA, 2009 WL 5069133 at *6 (N.D. Cal. Dec. 17, 2009)
vacated and remanded, 669 F.3d 983 (9th Cir. 2012).
184 See, e.g., Ibrahim v. Dep't of Homeland Sec., C 06-00545 WHA, 2013 WL 1703367 at *5-6 (N.D. Cal. Apr. 19,
2013).
185 N. L. R. B. v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975) (citation omitted).
186 Hongsermeier v. C.I.R., 621 F.3d 890, 904 (9th Cir. 2010).
187 Id. (citations and quotations omitted).
188 Ibrahim v. Dep't of Homeland Sec., C 06-00545 WHA, 2013 WL 1703367 at *2 (N.D. Cal. Apr. 19, 2013) (quoting
Cal. State Foster Parent Ass'n v. Wagner, No. 07–05086 WHA, 2008 WL 2872775 at *4 (N.D.Cal. July 23, 2008)).
189 49 C.F.R. § 1520.5.
190 49 C.F.R. § 1520.15.
191 See, e.g., Ibrahim v. Dep't of Homeland Sec., C 06-00545 WHA, 2009 WL 5069133 at *6 (N.D. Cal. Dec. 17, 2009)
vacated and remanded, 669 F.3d 983 (9th Cir. 2012).
192 See, e.g., id.; see also Department of Homeland Security Appropriations Act of 2007, P.L. 109-295, 120 Stat. 1355
(Oct. 4, 2006).
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due process requirements of placement on the No Fly list, federal agencies will receive
conflicting directives on how to proceed.
Author Contact Information
Jared P. Cole
Legislative Attorney
jpcole@crs.loc.gov, 7-6350
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