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Court: Passengers can challenge no-fly list
Tuesday, August 19, 2008
Critics of the government's secret no-fly list scored a potentially important victory Monday when a federal appeals court ruled that would-be passengers can ask a judge and jury to decide whether their inclusion on the list violates their rights.
In a 2-1 ruling, the Ninth U.S. Circuit Court of Appeals in San Francisco reinstated a suit by a former Stanford University student who was detained and handcuffed in 2005 as she was about to board a plane to her native Malaysia.
The ruling is apparently the first to allow a challenge to the no-fly list to proceed in a federal trial court, said the plaintiff's lawyer, Marwa Elzankaly.
The decision would allow individuals to demand information from the government, present evidence on why they should not have been on the list, and take the case to a jury, Elzankaly said.
The ruling means that "someone who finds it's likely that their name has been placed on a government watch list will get their day in court," Elzankaly said.
The Transportation Security Administration, which maintains the no-fly list, had no comment on the case, said Nico Melendez, an agency spokesman in Los Angeles .
A federal judge in San Francisco had dismissed the suit, citing a law that requires all challenges to TSA orders to be filed directly in an appeals court, with no right to present evidence or convene a jury. But the appeals court majority, led by Chief Judge Alex Kozinski, said the no-fly list, though maintained by the TSA, is actually compiled by a branch of the FBI, which can be sued in a trial court like most other federal agencies.
The TSA, part of the Homeland Security Department, has lists of hundreds of thousands of names of passengers who allegedly pose a risk of terrorism or air piracy, information the agency shares with airlines. Those on the no-fly list are prevented from boarding. Passengers on a separate "selectee" list undergo additional searches.
Such listings date from 1990 but have been expanded substantially since 2001, although the government has not disclosed their full scope or criteria. Civil liberties groups have argued that the lists are far too broad, are riddled with errors and lack meaningful safeguards. The TSA has established an ombudsman's office to review passengers' claims that they were mistakenly listed.
Monday's ruling involves Rahinah Ibrahim, a Stanford doctoral student in architecture who was stopped at a United Airlines counter in San Francisco in January 2005 when an employee spotted her name on the no-fly list, the court said. A phone call to police was relayed to the TSA, which told officers to detain Ibrahim and stop her from flying. She was handcuffed in front of her 14-year-old daughter, held in custody for two hours and then released by orders of the FBI.
Ibrahim returned the next day, went through additional searches and was allowed to fly. The mother of four, with no criminal record or connections to terrorism, has remained in Malaysia , where she completed her Stanford doctorate and teaches at a university, Elzankaly said.
Her lawsuit challenged her alleged inclusion on the no-fly list - an allegation the government has not confirmed, her lawyer said - and claimed violations of constitutional restrictions on searches and discrimination.
The ruling in Ibrahim vs. Homeland Security is available at links.sfgate.com/ZDXO.
E-mail Bob Egelko at email@example.com.
This article appeared on page B - 1 of the San Francisco Chronicle
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