U.S. Government Sued by ACLU Over No Fly List

Terrorist Watch List Violates Constitutional Rights When Those Barred From Flying Are Not Told Why, Says ACLU


June 30, 2010—

A former Air Force officer will be one of 10 plaintiffs included in a lawsuit filed by the American Civil Liberties Union today against the U.S. government challenging the country's no-fly list.

Steve Washburn, 55, an American citizen, learned he was placed on the no-fly list when he and his wife attempted to fly home to New Mexico from Dublin, Ireland.

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"When we went to board the plane they told me 'I'm sorry, we can't let you get on the plane. You're on the U.S. no-fly terrorist watch list,'" said Washburn. Now Washburn – who made it home after a carefully scripted 72 hour journey through Germany, Brazil, Peru and Mexico to avoid U.S. airspace - and others are a part of the ACLU lawsuit that charges the government of violating their constitutional rights.

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The suit names Attorney General Eric H. Holder Jr., FBI Director Robert S. Mueller III and Timothy J. Healy, the director of the Terrorist Screening Center as defendants.

It contends "The Constitution does not permit such a fundamental deprivation of rights to be carried out under a veil of secrecy and in the absence of even rudimentary process."

It goes on to say "…no government official or agency has offered any explanation for Plaintiff's apparent placement on the No Fly List or any other watch list. Nor has any government official or agency offered any of the Plaintiffs any meaningful opportunity to contest his or her placement on such a list."

"This is profoundly un-American," said Ben Wizner, a staff attorney at the ACLU's National Security Project. "People who are protected by the Constitution have a right to fundamental due process. If the United States government is going to maintain a watch list and prevent people from flying, there has to be some way for people to confront the evidence against them and rebut it."

Individuals on the no-fly list are prevented from boarding flights that enter or depart the U.S. or that fly over U.S. airspace.

No Fly List

A spokesman for the Terrorist Screening Center declined to comment on any of the cases presented in the lawsuit. In an email statement he said, "…the FBI is carefully to protect the civil rights and privacy concerns of all Americans," and directed ABC News to public testimony given by Director Healy at a recent congressional hearing.

In a March 10 Congressional hearing, Healy said, "….these people are identified by fragments of information. They're identified by a source saying, 'this guy's involved in it. So it's not a black and white system." He went on to say "It's a balancing act between civil liberties and the protection of the American people."

Prior to the Christmas day bombing attempt of an American passenger plan, U.S. officials said there were approximately 4,000 individuals on the no-fly list. That number is now believed to be nearly 8,000.

Steve Washburn, 55, a former Air Force officer, was stuck on Emerald Isle for three months, unable to return home until last month, because he appeared on the no fly list. He worked as a security expert in Saudi Arabia but wanted to return home with his wife in February after a brief visit in Ireland with his stepdaughter and new grandchild.

Washburn said he was halted from boarding a direct flight from Dublin to the U.S. in February.

"When we went to board the plane they told me 'I'm sorry, we can't let you get on the plane. You're on the U.S. no-fly terrorist watch list,'" said Washburn. "That was the moment I found out for the first time I was on the no fly list."

He later contacted the FBI who told him they had no concerns about him and even suggested Washburn get around the no fly list by flying to Mexico then walking across the border, he said.

When contacted about Washburn's ordeal, the FBI would not comment on his or any other person's experience involving the no fly list.

Washburn says he took their advice and boarded a flight to Mexico. However his wife – a Spanish citizen with a visa – was not permitted to fly with him although she was told she is not on a no fly list.

Three hours into his flight, the pilot was ordered to return to London Heathrow Airport where Washburn was detained, fingerprinted and tested for DNA by Scotland Yard officials. Washburn said he learned the plane was forced to return because it would briefly enter U.S. airspace, triggering the no fly list restriction.

No Fly List

Washburn, a Muslim convert, said he has never committed a crime and served honorably in the Air Force and at NORAD. He finally made it to the U.S. last month after a carefully scripted 72 hour journey through Germany, Brazil, Peru and Mexico to avoid U.S. airspace. He was detained and questioned overnight in Mexico by officers.

Once in El Paso, Texas, Washburn said he was held at U.S. Customs for seven hours and was handcuffed to a chair while they asked him questions that previous FBI agents had asked and he had answered.

"You feel abused and you get angry because you're thinking, 'This is injustice,'" he said. "No one will tell you why or how you got on the list. Growing up in America we're taught the great American system in that you're innocent until proven guilty."

Another recent addition to the no fly list is Adama Bah, a 22-year-old caregiver who was accompanying the family she works for on a trip to Chicago earlier this year. When she attempted to check in for her flight at LaGuardia Airport at the automatic ticket window, she received the message, "See an agent." The agent scanned her ticket and immediately called her supervisor.

"I didn't know what was going on," said Bah who was has lived in the U.S. since she was two. She was granted asylum in the U.S. in 2007 on grounds she would be persecuted if deported to her native Guinea. "NYPD officers and the Port Authority police officers came over and told me I was on the no fly list."

Bah says no one has yet to tell her why she is on the no-fly list.

"I honestly don't know why. Nobody tells you why," said Bah. "It is upsetting but it's more of confusion. I didn't do anything wrong and no one's giving me an answer as to why I'm on this list."

Bah is also one of the plaintiffs in the ACLU case and hopes the lawsuit will bring attention to her plight.

Gilbert Chagoury

While not involved in the ACLU lawsuit, Gilbert Chagoury, a jet-setting billionaire businessman with close ties to President Bill Clinton, was also added to the no-fly list in the wake of the attempted Christmas day bombing. Chagoury, 64, a Nigerian citizens of Lebanese descent, was pulled off a private jet on January 15 at Teterboro airport in New Jersey and detained for more than four hours after agents discovered his name was on the then-recently updated no-fly list.

"I think a huge mistake is an understatement," Chagoury told ABCNews.com and the Center for Public Integrity.

"I cannot accept being labeled a terrorist when I am known all over the world as a person who loves peace. It really hurts," he said.

Ben Wizner, the ACLU attorney representing the plaintiffs in their case against the government, agrees that we need to have the best security at airports and that people should be scrutinized carefully before they get on plans. But he says, "This is really something out of Kafka where you show up at an airport, you're told you can't fly, you not even told any reason for this ordeal, and you're not given any way to get off the list."

Individuals who find themselves on the list can submit a complaint to the Department of Homeland Security's Travelers Redress Inquiry Program (TRIP). The complaint is reviewed by the agency and referred to the Terrorist Screening Center redress team.

Three of the plaintiffs in the ACLU legal action are veterans of the U.S. Armed Forces, one is a naturalized U.S. citizen originally from Somalia and two – including Bah from Guinea – are permanent residents. The complaint will be filed today in Oregon.

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