{ "id": "R43730", "type": "CRS Report", "typeId": "REPORTS", "number": "R43730", "active": true, "source": "EveryCRSReport.com, University of North Texas Libraries Government Documents Department", "versions": [ { "source": "EveryCRSReport.com", "id": 587728, "date": "2016-07-27", "retrieved": "2020-01-02T15:34:53.397341", "title": "Terrorist Databases and the No Fly List: Procedural Due Process and Other Legal Issues", "summary": "In order to protect national security, the government maintains various terrorist watchlists, including the \u201cNo Fly\u201d list, which contains the names of individuals to be denied boarding on commercial airline flights. Travelers on the No Fly list are not permitted to board an American airline or any flight on a foreign air carrier that lands or departs from U.S. territory or flies over U.S. airspace. Some individuals have claimed that their alleged placement on the list was the result of an erroneous determination by the government that they posed a national security threat. In some cases, it has been reported that persons have been prevented from boarding an aircraft because they were mistakenly believed to be on the No Fly list, sometimes on account of having a name similar to another person who was actually on the list. As a result, various legal challenges to placement on the list have been brought in court. \nThe Due Process Clause of the Constitution provides that no person shall be \u201cdeprived of life, liberty, or property, without due process of law.\u201d Accordingly, when the government deprives someone of a constitutionally protected liberty interest, it must follow certain procedures. Several courts have found that placement on the No Fly list may impair constitutionally protected interests, including the right to travel internationally, and that the government\u2019s redress procedures must therefore satisfy due process. Typically, due process requires that the government provide a person with notice of the deprivation and an opportunity to be heard before a neutral party. However, the requirements of due process are not fixed, and can vary according to relevant factors. When determining the proper procedural protections in a given situation, courts employ the balancing test articulated by the Supreme Court in Mathews v. Eldridge, which weighs the private interests affected against the government\u2019s interest. Courts applying this balancing test might consider several factors, including the severity of the deprivation involved in placement on the No Fly list. In addition, courts may examine the risk of an erroneous deprivation under the current procedural framework and the potential value of imposing additional procedures on the process. Finally, courts may inquire into the government\u2019s interest in preserving the status quo, including the danger of permitting plaintiffs to access sensitive national security information.\nThe government has established a redress process\u2014known as DHS TRIP\u2014for individuals who wish to challenge their treatment at transportation hubs. A prior version of these procedures was found by a number of courts to violate the Due Process Clause. The government has since revised DHS TRIP, although these new procedures are also being challenged in federal court. Litigation is further complicated by several legal issues, such as the state secrets privilege, that can bar plaintiffs from accessing certain information during litigation.", "type": "CRS Report", "typeId": "REPORTS", "active": true, "formats": [ { "format": "HTML", "encoding": "utf-8", "url": "https://www.crs.gov/Reports/R43730", "sha1": "25ae10af4cb69dd416a59f2d332020e3d7ff2963", "filename": "files/20160727_R43730_25ae10af4cb69dd416a59f2d332020e3d7ff2963.html", "images": {} }, { "format": "PDF", "encoding": null, "url": "https://www.crs.gov/Reports/pdf/R43730", "sha1": "b68b9b840770108831e84a936c553db6e22cbc33", "filename": "files/20160727_R43730_b68b9b840770108831e84a936c553db6e22cbc33.pdf", "images": {} } ], "topics": [] }, { "source": "EveryCRSReport.com", "id": 440110, "date": "2015-04-02", "retrieved": "2016-04-06T19:17:39.407719", "title": "Terrorist Databases and the No Fly List: Procedural Due Process and Hurdles to Litigation", "summary": "In order to protect national security, the government maintains various terrorist watchlists, including the \u201cNo Fly\u201d list, which contains the names of individuals to be denied boarding on commercial airline flights. Travelers on the No Fly list are not permitted to board an American airline or any flight on a foreign air carrier that lands or departs from U.S. territory or flies over U.S. airspace. Some persons have claimed that their alleged placement on the list was the result of an erroneous determination by the government that they posed a national security threat. In some cases, it has been reported that persons have been prevented from boarding an aircraft because they were mistakenly believed to be on the No Fly list, sometimes on account of having a name similar to another person who was actually on the list. As a result, various legal challenges to placement on the list have been brought in court. \nThe Due Process Clause provides that no person shall be \u201cdeprived of life, liberty, or property, without due process of law.\u201d Accordingly, when a person has been deprived of a constitutionally protected liberty interest, the government must follow certain procedures. Several courts have found that placement on the No Fly list may impair constitutionally protected interests, including the right to travel internationally, and the government\u2019s redress procedures must therefore satisfy due process. Typically, due process requires that the government provide a person with notice of the deprivation and an opportunity to be heard before a neutral party. However, the requirements of due process are not fixed, and can vary according to relevant factors. When determining the proper procedural protections in a given situation, courts employ the balancing test articulated by the Supreme Court in Matthews v. Eldridge, which weighs the private interests affected against the government\u2019s interest. Courts applying this balancing test might consider several factors, including the severity of the deprivation involved in placement on the No Fly list. In addition, courts may examine the risk of an erroneous deprivation under the current procedural framework and the potential value of imposing additional procedures on the process. Finally, courts may inquire into the government\u2019s interest in preserving the status quo, including the danger of permitting plaintiffs to access sensitive national security information.\nResolution of the issue is currently pending as at least two federal courts have ruled that the government\u2019s redress procedures for travelers challenging placement on the No Fly list violate due process. The government is currently revising this process, although the precise details of what the new program will entail are unclear. Litigation is further complicated by several legal hurdles, such as the state secrets privilege, that can bar plaintiffs from accessing certain information during litigation.", "type": "CRS Report", "typeId": "REPORTS", "active": true, "formats": [ { "format": "HTML", "encoding": "utf-8", "url": "http://www.crs.gov/Reports/R43730", "sha1": "2f0a496714a6143de642e515894be80fe114f7a7", "filename": "files/20150402_R43730_2f0a496714a6143de642e515894be80fe114f7a7.html", "images": null }, { "format": "PDF", "encoding": null, "url": "http://www.crs.gov/Reports/pdf/R43730", "sha1": "ee876e1393dd84b9e5401e94a22d51ecd9c421a0", "filename": "files/20150402_R43730_ee876e1393dd84b9e5401e94a22d51ecd9c421a0.pdf", "images": null } ], "topics": [] }, { "source": "University of North Texas Libraries Government Documents Department", "sourceLink": "https://digital.library.unt.edu/ark:/67531/metadc462385/", "id": "R43730_2014Sep18", "date": "2014-09-18", "retrieved": "2014-12-05T09:57:41", "title": "The No Fly List: Procedural Due Process and Hurdles to Litigation", "summary": "This report provides an overview of the operation of the government's watchlists, examine some of the legal issues implicated by challenges to the No Fly list, and describe recent case law on the matter.", "type": "CRS Report", "typeId": "REPORT", "active": false, "formats": [ { "format": "PDF", "filename": "files/20140918_R43730_396291e11ae04ed81d5b4760f8b40ffcbb6d1617.pdf" }, { "format": "HTML", "filename": "files/20140918_R43730_396291e11ae04ed81d5b4760f8b40ffcbb6d1617.html" } ], "topics": [ { "source": "LIV", "id": "Commercial aviation", "name": "Commercial aviation" }, { "source": "LIV", "id": "Transportation", "name": "Transportation" }, { "source": "LIV", "id": "Aviation safety", "name": "Aviation safety" }, { "source": "LIV", "id": "Counterterrorism", "name": "Counterterrorism" }, { "source": "LIV", "id": "Due process of law", "name": "Due process of law" } ] } ], "topics": [ "Constitutional Questions", "Intelligence and National Security" ] }