Published November 20, 2014
A federal appeals court judge leaned forward in his chair, turned his head to the Justice Department attorney defending the government's no-fly list and posed a frank question.
"Let's say you want to fly back to Washington, and you find yourself on the no-fly list," 9th Circuit Court of Appeals Chief Judge Alex Kozinsky said Friday. "You're sitting in an airport, stranded. You think, 'my God, I went to law school, I work for (the Justice Department), in my heart I know I did nothing wrong.' What do you do?"
Fifteen Muslim men who faced circumstances similar to the hypothetical one asked by Kozinsky, are suing the federal government over their placement on the FBI's no-fly list. They had tried to board flights — either domestic or returning to the U.S. — and were told they couldn't fly.
Justice Department attorney Josh Waldman demurred and said circumstances differ among people on the list. The answer didn't satisfy Kozinsky.
"I mean you, yourself. It's going to be future denials, you can't fly to vacations, bar mitzvahs," Kozinsky pressed, drawing laughs in the federal courtroom in Portland. "I think people here are interested."
The judge's questions were at the heart of the men's lawsuit, though the subject before the three-judge appeals court panel was a narrower question — whether a federal court in Oregon has a say in the case, since the policies of the Transportation Security Administration are not subject to district court jurisdiction.
Last year, U.S. District Court Judge Anna Brown rejected the case, saying it couldn't rule on cases involving TSA policies and procedures.
Brown said she made her ruling based on whether the plaintiffs were arguing against the men's placement on the no-fly list by the FBI's Terrorist Screening Center or against TSA policies. The Terrorist Screening Center is subject to district court jurisdiction.
The men sued in 2010 with help from the ACLU, which filed the lawsuit in Oregon where one of the plaintiffs is an imam at a mosque. They have never been officially told they're on the no-fly list but learned of it when they tried to fly and were told by airlines or the FBI that they couldn't.
Several of the plaintiffs were left stranded overseas. Each received a one-time waiver to return to the U.S. They argue that their placement on the list violates their due-process rights.
In defending the secrecy of the no-fly list, the FBI has said it needs to protect sensitive investigations and to avoid giving terrorists clues for avoiding detection.
In answering Kozinsky's questions about getting off the list, the Justice Department attorney ultimately said he would go through the redress process through the Terrorist Screening Center.
The ACLU is asking the appeals court to send the case back to U.S. District Court. The organization was not spared the type of barbed questions asked of the Justice Department attorney.
Judge Richard Tallman repeatedly questioned ACLU attorney Nusrat Choudhury over the reason why the 15 plaintiffs didn't go through the full process to be removed from the no-fly list.
"You want us to rule on due process," Tallman said, "yet you haven't exhausted all options through the redress process."
Choudhury said that the lawsuit was taking a broad look at the entire process. Tallman responded by continuing to question Choudhury on the matter through her initial argument and rebuttal period.
Reach reporter Nigel Duara at http://www.twitter.com/nigelduara