9th Circuit Upholds No Fly List Against Due Process Challenges

Four plaintiffs’ due process challenges against the government’s No Fly List failed because the criteria used to place them on the list weren’t vague, the Ninth Circuit said Oct. 21.

A person is placed on the list if there is a reasonable suspicion to believe they will commit a violent act of international or domestic terrorism. Anyone on the list may not board commercial aircraft flying to, from, or within the U.S.

Agencies responsible for maintaining the list have specific guidelines to follow, including having articulable intelligence, before placing someone on it.

One of the plaintiffs still in the suit was put on the list because he allegedly made statements to the FBI concerning his willingness to fight in Iraq against the U.S. Another has received terrorist training in Somalia.

The third plaintiff also allegedly went to Somalia “to train for and engage in jihad,” the court said. The fourth plaintiff was included on the list for “national security” reasons.

The government had a reasonable suspicion the plaintiffs would be involved in terrorism, the opinion by Judge Raymond C. Fisher said.

The plaintiffs also had fair notice their activities would place them on the list, and thus the applicable criteria weren’t vague as applied to them, the court said.

The procedures followed by the government were also constitutionally sufficient in this case, the court said. Given the national security interests at issue, the government has taken reasonable measures to ensure basic fairness to the plaintiffs and followed procedures reasonably designed to protect their liberty, it said.

Judges Consuelo M. Callahan and Cathy Ann Bencivengo, sitting by designation, joined the opinion.

The American Civil Liberties Union Foundation represented the plaintiffs. DOJ represented the government.

The case is Kashem v. Barr, 9th Cir., No. 17-35634, 10/21/19.