Shaina N. Elias · June 2009
77 GEO. WASH. L. REV. 1015 (2009)
Alex Harris likes to travel with his family. In fact, Alex’s family, who lives in New York City, recently took a trip to London. Upon their return to John F. Kennedy International Airport from London, however, Alex Harris and his family were placed in a holding room because Alex’s name matched a name on the “No-Fly List.” “Look at him,” Alex’s mother shouted during the detainment, “He’s clearly not a terrorist. He’s 7!” Over two hours later, airport officials decided that Alex Harris was not a federal terrorist and permitted Alex and his family to leave the airport’s holding room.
Alex’s story highlights just one problem in the government’s administration of the No-Fly List, which includes the names of thousands of individuals who allegedly pose a risk of terrorism or air piracy. As a result of their placement on the list, No-Fly List passengers are either subjected to additional screening by the Transportation Security Administration (“TSA”) or prevented from flying altogether. As of 2007, the No-Fly List consisted of more than 540 pages and included the names of people who were dead, elderly, and even of international dignitary distinction.
Aside from its ineffective administration and inaccurate composition, the No-Fly List presents another critical problem that has not received much attention in the media—the inability of persons to challenge in federal district court their likely inclusion in the secret database. Citing a jurisdictional statute, courts have held that No-Fly List passengers are precluded from filing suit against TSA in federal district courts because Congress has granted exclusive jurisdiction over such challenges to the courts of appeals.
Banning challenges to the No-Fly List from district courts is extremely detrimental to the viability of passengers’ claims. Because TSA will not publicly disclose any information about the No-Fly List, passengers lack a factual record on which to base their suits. Additionally, without the ability of passengers to subpoena the government for documents relating to the creation of or their subsequent inclusion on the No-Fly List, or to present evidence to a jury as to why the passengers should not be in the secret database—such as their lack of criminal histories or ties to terrorist organizations—the facts surrounding the No-Fly List remain undisclosed and difficult to determine. If TSA is allowed to harbor all factual information regarding the No-Fly List and its related policies and procedures, there can be no independent check of administrative agency power. Moreover, such a discouraging situation leaves No-Fly List passengers with only one viable course of action: to challenge the constitutionality of the No-Fly List itself. Such constitutional challenges, however, have been unsuccessful.
Recently, a procedural ruling by the Court of Appeals for the Ninth Circuit provided a new pathway for Alex and his family to protect their rights from infringement by administrative agencies. In a two-to-one decision, the court in Ibrahim v. DHS considered the organizational structure of the administrative agencies responsible for the No-Fly List and held that the special jurisdictional statute that had previously been understood to prevent passengers from gaining access to federal trial courts had been misinterpreted. Based on a new reading of the jurisdictional statute, the Ninth Circuit thus held that would-be passengers could ask federal district courts to decide whether their likely inclusion in the nation’s secret antiterrorism database violates their rights. This Essay maintains that Ibrahim was correctly decided and should be adopted by courts across the country.
Part I of this Essay begins by providing background information about the No-Fly List, including the context in which the list was created, the administrative agencies responsible for its maintenance and enforcement, and the consequences of one agency’s nondisclosure policy regarding the list. Part II of this Essay then discusses, through administrative agency procedures and related case law, the legal remedies available to passengers mistakenly included on the No-Fly List. Thereafter, Part III of this Essay explains in detail the Ninth Circuit’s rationale in the landmark decision of Ibrahim. To conclude, Part IV of this Essay suggests that federal courts across the country should adopt the Ninth Circuit’s interpretation of the jurisdictional statute in Ibrahim because the interpretation correctly incorporates agency organization into its reading, provides a legal pathway for passengers to protect their rights from infringement by federal administrative agencies, and maintains the fundamental system of checks and balances created by the federal Constitution.
