May 14, 2012 - The American Civil Liberties Union (ACLU) on Friday began its augment in the U.S. Court of Appeals for the Ninth Circuit that its challenge to the government’s secretive No Fly List should be reinstated.

The ACLU represents 15 U.S. citizens and permanent residents, including four military veterans, who are banned from flying to or from the U.S. or over American airspace, causing great personal hardship. They have never been told why they are on the list or given a reasonable opportunity to get off it.

The national ACLU, along with its affiliates in Oregon, Southern California, Northern California and New Mexico, filed the lawsuit against the FBI, which creates and controls the list.

Last May, the district court in Portland dismissed the case for lack of jurisdiction, ruling that the lawsuit should have been filed against the Transportation Security Administration, which administers the redress process for travelers denied boarding. “It is unconstitutional for the government to put people on secret lists and deny them the right to travel without even basic due process,” said Nusrat Choudhury, staff attorney with the ACLU’s National Security Project.  

“Without a meaningful way for people to challenge their inclusion on the list, there's no way to keep innocent people off it. We filed our case against the right agency, and the government’s effort to delay a hearing on the constitutionality of this unfair system is wrong.” 

Being unable to fly has severely affected the plaintiffs’ lives, including their ability to be with their families, go to school, and travel for work. Plaintiff Abe Mashal, a U.S. Marine Corps veteran and dog trainer, has lost the business of clients located outside of driving distance from his home in Illinois. “I have no idea why I’m on the list,” said Mashal. “I should have the chance to clear my name and live my life normally. This has been a real hardship for me both personally and financially.” 

The No Fly List is a list, created and maintained by the United States government's Terrorist Screening Center (TSC), of people who are not permitted to board a commercial aircraft for travel in or out of the United States. The list has also been used to divert away from U.S. airspace aircraft not flying to or from the U.S.

The number of people on the list rises and falls according to threat and intelligence reporting. As of 2011, the list contained about 10,000 names. The list – along with the Secondary Security Screening Selection, which tags would-be passengers for extra inspection – was created after the September 11 attacks in 2001. 

The No Fly List is different from the Terrorist Watch List, a much longer list of people suspected of some involvement with terrorism. The Terrorist Watch List contained around 400,000 names as of summer 2011, according to the TSC. The list has been criticized on civil liberties and due process grounds, due in part to the potential for ethnic, religious, economic, political, or racial profiling and discrimination. It has also raised concerns about privacy and government secrecy. Finally, it has been criticized as costly, prone to false positives, and easily defeated.