On August 18, 2008, a federal court ruled that airline passengers who
are on no-fly lists can sue to clear their names. In Ibrahim v. Dep't of
Homeland Security, the Ninth Circuit Court of Appeals held that federal
trial courts can hear complaints from individuals who are named on the
government's air travel watch lists. The ruling states that trial courts
are the proper venues for such challenges, because the lists are
maintained by the Terrorist Screening Center, a federal entity separate
from the Transportation Security Administration (TSA). Federal trial
courts cannot hear challenges to TSA orders. The decision promises to
increase judicial oversight of the "no-fly list" and other federal
aviation watch lists.
At least one lawsuit followed swiftly on the heels of the Ibrahim
decision. Erich Scherfen, a commercial pilot and Gulf War veteran, has
filed a complaint in Pennsylvania federal court challenging his
inclusion on a government watch list. Scherfen wants a judge to order
his name removed from the list, and alleges that time is of the essence
- his employer suspended him based on his inclusion on the list.
Scherfen further argues that he attempted to rectify the situation
through the Dep't. of Homeland Security's suggested procedure, but was
stymied by the agency's unwillingness to delete his name, or even
acknowledge that his name appears on a watch list.
Air travel watch lists include at least 400,000 names, and can prevent
flyers from boarding planes. Several high-profile cases have highlighted
watch list inaccuracies, including errors involving Senator Edward
Kennedy, military veterans, and former high-ranking federal officials.
The watch lists are filled with incorrect data and generate many false
positives, but adverse determinations are virtually impossible to
challenge. Homeland Security Secretary Michael Chertoff has objected to
court oversight, but refuses to disclose the details behind the lists.
EPIC previously documented numerous errors and complaints regarding air
travel watch lists. EPIC obtained more than a hundred complaints filed
by irate passengers who felt they had been incorrectly identified for
additional security or were denied boarding. The complaints describe the
bureaucratic maze passengers find themselves in if they happen to be
mistaken for individuals on the lists. In one case, the federal
government directed an aggrieved passenger to contact the airline. In
another case, an airline directed a passenger to contact the federal
government. The litany of problems is long, but all point to a lack of
transparency and due process in the operation of the watch lists.
The government administers three lists: a "terror watch list," a
"selectee" list, and a "no fly" list. The "selectee" list requires
passengers to go through additional security measures. The "no fly" list
prohibits passengers from flying altogether. The names are provided to
air carriers through Security Directives or Emergency Amendments and are
stored in their computer systems so that an individual with a name that
matches the list can be flagged when getting a boarding pass. A "no fly"
match requires the agent to call a law enforcement officer to detain and
question the passenger. In the case of a Selectee, an "S" or special
mark is printed on their boarding pass and the person receives
additional screening at security. Federal officials have refused to
describe selection criteria in detail, and have failed to implement open
and transparent procedures for correcting watch list errors.
Ninth Circuit Ruling in Ibrahim v. Dep't. of Homeland Security: