ACLU argues in court against U.S. no-fly list

By Maureen O'Hagan
Seattle Times staff reporter

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The same goes for Michelle D. Green, an Air Force sergeant from Alaska. And Alexandra Hay, a student at Middlebury College in Vermont. And countless others, according to a lawsuit filed in Seattle by the American Civil Liberties Union (ACLU). It's the first broad challenge to the government's no-fly list, an ever-growing roster provided to airlines to keep dangerous passengers out of the skies.

In a hearing in U.S. District Court in Seattle yesterday, ACLU lawyers argued their clients are treated as suspected terrorists while they struggle to prove their identities, yet even after doing so, they are subject to pat-down searches and piece-by-piece luggage inspection. Often, they aren't told why they're being singled out. And even when they find out, they are given no sure way to clear their names for good.

"The defendants know none of the plaintiffs are terrorism suspects," Reginald Shuford, an ACLU lawyer from New York, argued yesterday. "Nevertheless, the defendants insist on subjecting them to investigation, delays, interrogations, detentions and searches virtually every time they fly."

In the suit, the ACLU asks the Transportation Security Administration (TSA) to allow their clients to travel normally, subject only to the sorts of searches used for other passengers. There are seven plaintiffs, but the suit seeks class-action status.

While the hearing focused mainly on procedural issues, a single theme emerged: In a post-9/11 world, keeping a check on government intrusions into the lives of ordinary people is no easy task. Indeed, the government acknowledged the repeated delays must be frustrating. But its response is unequivocal: Get used to it.

"You balance an individual's right to be free of an intrusive search against societal interest in safe air travel," argued Department of Justice lawyer Joseph LoBue.

And besides, the government pointed out that the TSA does have a procedure, albeit little known, in which passengers may mail the agency numerous forms of identification, and the agency then notifies the airlines that they are not the same person on the no-fly list. However, the method isn't foolproof, and even after going through the process, one of the ACLU plaintiffs was still stopped and subject to questioning, the lawsuit says.

When U.S. District Judge Thomas S. Zilly asked the ACLU lawyer how he might resolve the problem, the lawyer had no answer. The TSA won't say how the agency decides who to put on the list, so the ACLU isn't quite sure how its clients got there in the first place.

Perhaps, it theorized, the plaintiffs share the same name as someone who is a potential terrorist. If so, the government argues, Zilly couldn't simply order John Shaw's name stricken from the list — because what would happen, then, when another John Shaw, the suspected terrorist, tries to board a plane? Certainly, he said, the government has a right to stop and question him.

Indeed, the ACLU may have a bigger hurdle. The government says the suit should be thrown out because federal rules prohibit challenges to agency orders, such as the order that created the no-fly list, in U.S. District Court. Instead, the plaintiffs may file suit in the U.S. Court of Appeals, essentially challenging the TSA's decision to put them on the list in the first place. But the plaintiffs counter that the TSA won't provide any information on the list, so there would be nothing for the Court of Appeals to review.
 
"We feel like the government is trying to put us in a Catch-22, where there's never going to be a court that can hear our argument," said Aaron Caplan, the local ACLU lawyer.

Zilly is considering first whether the suit can be filed in his court, and once he decides that, he will determine whether the case can proceed.

Maureen O'Hagan: 206-464-2562 or mohagan@seattletimes.com