The Obama administration is promising to change the way travelers can ask to be removed from its no-fly list of suspected terrorists banned from air travel.
The decision comes after a federal judge’s ruling that there was no meaningful way to challenge the designation, a situation deemed unconstitutional. In response, the Justice Department said the U.S. will change the process during the next six months. As of late last summer, about 48,000 people were on the no-fly list.
The government’s policy is never to confirm or deny that a person actually is on the no-fly list, citing national security concerns. In most instances, travelers assume they are on the list because they are instructed to go through additional screening at airports or because they are told they can’t board their flights to, from or within the United States.
The no-fly list is one of the government’s most controversial post-9/11 counterterrorism programs because of its lack of due process, long criticized because people cannot know why they were placed on the list and lack an effective way to fight the decision. Changing how people can challenge their designation could amount to one of the government’s most significant adjustments to how it manages the list.
“It’s long past time for the government to revamp its general procedures,” said Hina Shamsi, an attorney with the American Civil Liberties Union.
Shamsi is among the attorneys who represent 13 plaintiffs who sued the federal government over the current policy, saying it violates their constitutional right to due process. Earlier this summer, a federal judge in Portland, Oregon, agreed with them. The Portland case is one of five around the country challenging some aspect of the terror watch lists.
So far, the government is offering few details about upcoming changes. In a court filing earlier this month, it said it will “endeavor to increase transparency for certain individuals denied boarding who believe they are on the No Fly List.”
One of the plaintiffs in the Portland lawsuit, Abe Mashal, was unable to print his boarding pass before a flight out of Chicago four years ago. A counter representative told him he was on the no-fly list and would not be allowed to board. Mashal was surrounded by about 30 law enforcement officials, he said.
Mashal appealed the same day but six months later the government responded, “no changes or corrections are warranted at this time.” He appealed the decision in May 2011. Nine months later, the government said its ruling was final.
The appeals process, known as redress, was started in 2007. The government receives tens of thousands of applications a year, according to court documents.
But 99 percent of those complaints are unrelated to the terror watch lists, the current director of the Terrorist Screening Center, Christopher Piehota, said in a November 2010 declaration related to a California no-fly list lawsuit. At the time, Piehota was deputy director of operations at the center, which determines whether someone is appropriately on a terror watch list.
In 2013, 752 redress complaints were shared with the Terrorist Screening Center, according to information provided by the government in a separate federal lawsuit out of Virginia. Formal complaints led the U.S. to remove 100 people from a broad terror watch list, the no-fly list and a separate list of people who require additional screening at airports, the government said. It described the 752 complaints as just 1 percent of the total redress requests, indicating it received about 75,000 that year.
The screening center considered only 227 requests in 2009. After a near-miss terror attack on Christmas Day that year, the government revamped its watch-listing system and lowered the standard for the no-fly list. The number of people banned from air travel surged from about 3,400 at the end of 2009 to about 48,000 late last summer, intelligence officials have told The Associated Press.
After someone complains under the process, the government conducts a review. Once complete, the applicant is given a redress number to use when booking air travel reservations. Often this is done to resolve problems for people with similar names as someone on a terror watch list.
Mashal, a Marine veteran who is now a dog trainer, said being on the no-fly list has cost him business clients and stopped him from attending a wedding, funeral and graduation.
After three years of avoiding air travel, Mashal purchased a ticket last summer. He was able to print his boarding pass at home, which he said was the first sign he might no longer be on the list. In 2013, he flew in June and October without incident. But he said he never knows what to expect.
“It’s always something I have to think about now, because nobody knows why I got put on the list, and nobody knows why they took me off,” Mashal said. “It’s always on my mind.”
The Justice Department said it would reconsider Mashal’s and the other Portland plaintiffs’ requests after making its changes to the redress process. A judge will determine whether that is an appropriate response.