SEATTLE – A U.S. Justice Department lawyer on Thursday asked a federal judge to dismiss a lawsuit that alleges the government’s administration of its “no-fly” list violates airline passengers’ rights.
The American Civil Liberties Union lawsuit alleges the government has put in place insufficient safeguards to ensure that people with names similar to those on the list aren’t repeatedly treated with suspicion.
Airport searches are the price Americans pay for safety after the Sept. 11, 2001, terrorist attacks, Joseph LoBue, representing the government, told U.S. District Judge Thomas Zilly.
The ACLU countered that the government should find a way to safeguard lives without trampling on the constitutional rights of innocent Americans, specifically the right to due process and protection from unreasonable search and seizure.
Zilly must decide whether to dismiss the case, retain it himself or determine that his court lacks jurisdiction and send it on to a federal appellate court.
If the lawsuit is not dismissed, LoBue argued, then federal laws and previous court decisions indicate a case like this – questioning federal transportation rules – should go directly to the Court of Appeals.
Aaron H. Caplan, a staff lawyer for ACLU of Washington, said outside the courtroom that the government was trying to avoid a meaningful judicial review of the way the federal Transportation Security Administration screens airline passengers.
Caplan called it a “Catch 22,” saying he doubted an appeals court would agree to hear the case without a case record from a lower court.
Lawyers said they expected the judge would take at least two weeks to rule.
The ACLU filed suit in April in Seattle against the TSA, which administers the “no-fly list,” naming as plaintiffs seven individuals who have been repeatedly stopped at airports and questioned for as long as an hour before being allowed to board.
The seven, who include a retired minister, a college student, an Air Force master sergeant and a human rights activist, believe they are grilled because of mistaken identity – names similar to those the government deems too dangerous to board commercial flights.
The TSA administers two lists: a “no-fly” list of people who are not allowed to board and a “selectee” list of people who go through a more extensive screening process before boarding.
Federal law enforcement and intelligence agencies recommend to the TSA who gets put on the lists, but little else is known about them. The government does not confirm any names on the lists. Sample copies of parts of the lists were provided to the judge but not to the ACLU lawyers.
Reginald Shuford, an ACLU senior staff attorney who is lead counsel in the case, said the ACLU does not argue against creation of the lists but challenges their accuracy, the way they are being maintained and how they are being disseminated.
“What we complain about is the targeting of our clients based upon shoddy … record-keeping by the government,” Shuford said.
“Shoddy record-keeping doesn’t get you a constitutional violation,” the judge replied.
LoBue noted the TSA has established an ombudsman procedure that allows people who believe they are being confused with people on the lists to provide information to the government to help security screeners identify them in future. Three of the plaintiffs have gone through the ombudsman process, but Shuford said they are still being targeted for special security attention.
LoBue said it was not realistic to expect the airlines and the government to work together to build lists of people being misidentified. He encouraged the plaintiffs to bring their information to the government’s attention through the ombudsman process.
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