More than a dozen U.S. citizens and legal residents are challenging the federal government’s secretive no-fly list, arguing its use and function are unconstitutional.

A lawsuit filed in 2010 in an Oregon federal court contends the Department of Homeland Security (DHS) has denied individuals their rights of due process by placing their names on the list without notification or explanation for why. Those on the list also cannot directly challenge their status, leaving them at the mercy of an invisible bureaucratic process, the plaintiffs say.

It “comes down to the government asking all of us to trust it,” Hina Shamsi, an attorney with the American Civil Liberties Union, which is representing the 13 plaintiffs, said in court.

The plaintiffs are all Muslims, including Ibraheim (Abe) Mashal, who was born in New Jersey and served 13 years in the Marine Corps. Mashal didn’t find out about being on the no-fly list until he tried unsuccessfully to fly from Illinois to Washington state.

To make matters worse, the Federal Bureau of Investigation approached Mashal, telling him that his name would be removed from the list if he became an informant. He told The Wall Street Journal that the offer shocked him.

Part of the secrecy of the no-fly list is that people are also not told when they’re removed from it. Mashal only found out when he took a short flight from Chicago to Milwaukee as a test. When he was allowed to board the plane, he knew he’d been taken off the list. Mashal and the other plaintiffs have been making strides in their court case. U.S. District Judge Anna Brown ruled several months ago that the plaintiffs cannot be denied the right to travel by commercial airline without some kind of fair process.

This week, Brown told the government’s lawyer, Amy Powell, that she did not see how DHS could justify keeping all details about the no-fly list a secret. “The secrecy is diminished once the person is turned away,” Brown said. “Arguing the process is necessary to protect that secrecy has no basis. What am I missing?”

Powell told the court that the government can be trusted to properly maintain the list without public exposure because officials adhere to “robust quality controls.”

-Noel Brinkerhoff

To Learn More:

No-Fly List Back in Federal Court in Portland as Lawyers Argue Over Secrecy vs. National Security (by Helen Jung, The Oregonian)

Judge Questions Secrecy Shrouding 'No Fly' List (by Joel Millman, Wall Street Journal)

Latif, et al. v. Holder, et al. - ACLU Challenge to Government No Fly List (American Civil Liberties Union)

First Person to Successfully Challenge Inclusion on No-Fly List (by Ken Broder, AllGov)

Many of 500 Americans on No-Fly List Don’t Know Why (by Matt Bewig, AllGov)