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2012 Archives

No-fly list lawsuit:
A law professor's perspective on the case's reinstatement


The following is from the July 27, 2012, edition of The Oregonian. SMU Law Professor Jeffrey Kahn provided expertise for this story.

August 9, 2012

By Helen Jung
The Oregonian

A three-judge panel from the 9th Circuit Court of Appeals on Thursday announced that a federal lawsuit challenging the FBI over the constitutionality of the no-fly list should be reinstated in U.S. District Court in Portland. The decision was unanimous.

The move is a big win for the plaintiffs -- 15 Muslim men, all American citizens or permanent residents who have never been charged with a terrorism-related offense -- and who have apparently been placed on the no-fly list.

Today, Jeffrey Kahn, an associate law professor at Southern Methodist University's Dedman School of Law offered his thoughts on the decision on the Concurring Opinions legal issues blog.

Kahn has been closely following the court case and is currently writing a book about the no-fly list. His book, Mrs. Shipley's Ghost: The Right to Travel and Terrorist Watchlists, is due out in December.

From his post:

Orwell and Kafka had no part in designing the U.S. No Fly List or the process for complaining about it, but they’d recognize both. Agency # 1 is the Terrorist Screening Center (TSC), a component of the FBI. Agency # 2 is the Transportation Security Administration (TSA), which implements the TSC decisions and supports the Department of Homeland Security’s Traveler Redress Inquiry Program. Cleverly, the program’s acronym spells “TRIP” but leaves open whether the word is a noun synonymous with travel or a verb that means to trap, catch, or cause to stumble.

Separating and hiding the real decisionmaker (TSC) behind the recipient of complaints (TSA) worked a nice bureaucratic trick. No one had managed to reach the TSC with a successful lawsuit and anyone who threatened to come close was presented an offer for out-of-court settlement. The statute that cuts out the district courts, 49 U.S.C. § 46110, is a legacy of TSA’s origins as part of the Federal Aviation Administration. It made perfect sense for reviewing the agency’s record in a run-of-the-mill case of license revocation or permit denial. In a No Fly List case, however, the law has been used to deny the plaintiff access to the real decisionmaker and to deprive the plaintiff of access to a court that can actually remedy his injury.

Read his full post at the Concurring Opinions blog.

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