Who Can Challenge the No-Fly List?

Khushnood Ali Baz wants to know what makes him a threat to U.S. national security. A Pakistani physician with a long history of traveling to and working in the United States, Baz suddenly found himself barred from flying to the United States in 2016.

Despite long-standing ties to the United States, Baz has no way of determining whether and why his name landed on the no-fly list.

Baz is now filing a lawsuit against Attorney General Jeff Sessions, the Department of Homeland Security (DHS), the FBI, the Terrorist Screening Center, the Transportation Security Administration (TSA), and the heads of those agencies in the U.S. District Court for the District of Columbia to clear his name. “First and foremost, I have to know whether I am on the no-fly list or not,” he tells Foreign Policy.

In 2014, the American Civil Liberties Union obtained a federal court ruling that U.S. citizens and lawful permanent residents were entitled to know if they were on the list and potentially know what got them there. Baz’s case, if successful, could extend that right to foreign nationals.

These same due process rights “should apply in this context to someone who has been coming to the U.S. and has a long history of coming to the United States and has significant ties to the United States,” says Sirine Shebaya, a senior staff attorney for Muslim Advocates. “That level of process — being told that you are on the list, being able to contest any kind of evidence against you — that is the minimum process that you are owed and that it should be extended to Dr. Baz.”

In the context of ongoing litigation in the U.S. Court of Appeals, Baz and his legal team — composed of lawyers from Muslim Advocates, Holwell Shuster & Goldberg LLP, and Ellahie & Farooqui LLP — are asking for that the bare minimum standard of due process be extended to a non-U.S. citizen.

This isn’t the first time a non-U.S. citizen has relied on the American legal system to clear their name from the no-fly list. After having her U.S. visa revoked and discovering she was on the no-fly list, Rahinah Ibrahim, a Malaysian academic with a doctorate from Stanford University, sued to find out why.

Government lawyers responded that all information on the no-fly list needed to remain secret from Ibrahim for national security reasons and that, as a non-U.S. citizen, she did not have standing in American courts. Nearly a decade after Ibrahim filed her lawsuit, an appeals court ruled that Ibrahim could assert constitutional claims due to her strong ties to the United States.

“The Ibrahim case is an important precedent for Dr. Baz’s case because it also dealt with a noncitizen who was outside the United States but who had significant voluntary connections with the United States,” Shebaya says. “That same reasoning applies to Dr. Baz’s case — he has substantial voluntary connections with the United States and has the right to assert due process claims under the Fifth Amendment.”

The terrorist watchlist, run by the FBI’s Terrorist Screening Center, is supposed to allow the U.S government to stop suspected terrorists from getting visas and entering the country. As a part of the watchlist, the no-fly list identifies people who cannot fly to, from, or over American territory.

Yet the no-fly list has a checkered history. In 2006, a U.S. Government Accountability Office report found thousands of misidentifications, leading to missed flights, questioning, searches, and travelers being refused entry at the border. 

A subsequent report from the Department of Justice Office of the Inspector General in 2009 criticized the FBI’s weak internal controls in nominating people to the watchlist. It also revealed that the FBI did not properly update records, failing to remove names in a timely manner in 72 percent of cases when it was required.

“The disconnect is between what the government in its own reports and its own studies has concluded about the failings of the no-fly lists, its inaccuracies and the errors that have arisen, and the redress procedures and their inadequacies,” says Andrei Vrabie, another lawyer on Baz’s legal team. “In other words, the government knows there is a problem but they are very recalcitrant and hesitant to implement a workable solution.”

In 2010, the ACLU filed a lawsuit in federal court on behalf of 10 people who said the government never told them they were on the no-fly list, depriving them of their due process rights. Four years later, the court ruled the lack of redress unconstitutional, and in 2015 the government said it would inform citizens and legal permanent residents if their names were on the list and, in some cases, offer a summary of the reasons for their inclusion on the list.

The ACLU continues to challenge the adequacy of redress provided by the U.S. government with a lawsuit in the U.S. Court of Appeals for the 9th Circuit.

“The government reserves the right to withhold reasons that are themselves sufficient to justify continued inclusion on the list,” says Hugh Handeyside, a senior staff attorney in the ACLU’s National Security Project. “That sort of defeats the purpose. They don’t have to turn over supporting or exculpatory evidence. And it doesn’t include a live hearing before a neutral magistrate or decision-maker.”

When the court finally told the government that it had to disclose to the ACLU’s clients whether or not they were on the list,  seven of the 13 plaintiffs (three additional people joined the lawsuit after 2010) learned they were no longer on the no-fly list.

Baz, the Pakistani physician, believes he is among those wronged by the Kafkaesque inefficiencies that surround the no-fly list.

His troubles began in February 2016, when, armed with a valid U.S. visa, the orthopedic surgeon departed from Pakistan to attend a medical conference in Orlando. Baz regularly traveled to the United States for medical conferences, and he owns a home in Toledo, Ohio.

Before boarding his connecting flight in Toronto, an airline official notified him that he was not allowed to fly.

Baz then submitted what is known as a Traveler Inquiry Form to DHS’s Traveler Redress Inquiry Program. DHS responded two months later by issuing him a redress control number to provide whenever he made flight reservations to the U.S.

Yet, DHS’s response to Baz’s inquiry did not say that he was on either the watchlist or the no-fly list.

In January of the following year, Baz notified DHS of his intention to attend the March conference of the American Academy of Orthopaedic Surgeons in San Diego. Responding a month later, DHS repeated its advice to provide the redress control number when making reservations.

Baz did as he was told and provided his travel agent with the number. But while waiting for his connecting flight in Dubai, a ticketing agent told Baz his ticket was suspended.

Baz was now convinced his name had somehow ended up on the no-fly list.

A month after sending another email to DHS demanding to know why it had not informed him that he would not be able to fly to the United States, he received a form letter complete with a new redress control number stating that DHS “can neither confirm nor deny any information about you which may be within federal watchlists or reveal any law enforcement sensitive information.”

It also informed Baz that complaints most often arise because an individual has a name or other personal information similar to that of another person in government databases, or even just through random screening.

In June 2017, Baz filed a review petition in the District of Columbia Court of Appeals, demanding that the court compel DHS to remove his name from the no-fly list. He has since withdrawn the petition to file this week’s lawsuit.

A month after Baz filed the petition, an email from the U.S. Embassy in Islamabad notified him that his, his wife’s, and his daughter’s visas had been cancelled.

The FBI and DHS did not respond to requests for comment.

Baz hopes that his lawsuit will salvage his good standing in the United States and his reputation. “The mental anguish that you face, the way people look at you, if you have respect in an area, all of a sudden they start seeing you from a different angle, they look at you suspiciously,” he says. “It is devastating.”