JURIST - Paper Chase: Ninth Circuit rules people on 'no-fly' list can challenge status in federal courts

[JURIST] The US Court of Appeals for the Ninth Circuit [official website] ruled [decision, PDF] Monday that those placed on the government's "no-fly list" can challenge their inclusion on the list in federal district courts. The issue came before the court in a case brought by a woman on the list, in which a district court had ruled that it lacked jurisdiction because of a law [statute text] exempting Transportation Security Administration (TSA) [official website] orders from federal trial court review. Reversing the decision, the Ninth Circuit held that the Terrorist Screening Center [official website] which actually maintains the list is a subsection of the Federal Bureau of Investigation (FBI) and is therefore subject to review by the district courts:

Our interpretation of section 46110 is consistent not merely with the statutory language but with common sense as well. Just how would an appellate court review the agency’s decision to put a particular name on the list? There was no hearing before an administrative law judge; there was no notice-and comment procedure. For all we know, there is no administrative record of any sort for us to review. So if any court is going to review the government’s decision to put Ibrahim’s name on the No-Fly List, it makes sense that it be a court with the ability to take evidence.[citations omitted]

The court also held that the woman could not bring two related claims because they were “inescapably intertwined” with TSA orders. The San Francisco Chronicle has more.

In July, the US terror watchlist [FBI FAQ], which includes the no-fly list, was criticized [JURIST report] by the American Civil Liberties Union (ACLU) [advocacy website] for being too large, containing inaccuracies, and lacking safeguards to prevent the unnecessary targeting of passengers for additional security screenings. In March, the US Department of Justice (DOJ) Office of the Inspector General (OIG) [official website] issued a report [PDF text] saying that FBI had submitted inaccurate information to the list [JURIST report], that the information was rarely reviewed before its submission, and even if discrepancies become apparent they were often left unchanged. In response to the audit, FBI Assistant Director John Miller said that the agency was working with the DOJ and other partner agencies [press release] to "ensure the proper balance between national security protection and the need for accurate, efficient, and streamlined watchlist processes."