Aviation Screening

Shirin Sinnar on Latif v. Holder

By Benjamin Wittes
Tuesday, July 31, 2012, 9:36 PM

No, not Latif the Guantanamo habeas case. This Latif is a recent 9th Circuit decision which I had missed until Shirin Sinnar of Stanford Law School sent me the following the other day:

In a little noticed decision, the Ninth Circuit last week revived an important legal challenge to the terrorist watchlist.  The decision in Latif v. Holder turns on knotty questions of jurisdiction and civil procedure, and the case is still far from any resolution on the merits.  But it’s an important case to watch: not only have earlier legal challenges to the watchlist largely sputtered, leaving key constitutional questions unresolved, but this suit arises out of the government’s most aggressive, and problematic, use of the watchlist to date: the protracted exclusion of U.S. citizens from the United States.

Here are the basic facts.  Fifteen U.S. citizens and legal permanent residents sued the Terrorist Screening Center and other entities because they were prohibited from flying based on their apparent inclusion on the No Fly List.  According to the original ACLU complaint, several U.S. citizens were stranded abroad for months without being permitted to fly home.  Citing violations of their due process rights and the Administrative Procedures Act, they now seek an injunction that would remove their names from the list or provide a meaningful process to contest their continued inclusion.  The existing administrative “redress” procedure for travelers doesn’t tell individuals why they’ve been listed, making it difficult to contest their listing, or how, if at all, their complaints have been addressed.

The district court had originally dismissed the suit because the plaintiffs hadn’t named the Transportation Security Administration as a defendant, and under Federal Rule of Civil Procedure 19, a court may dismiss a suit if it fails to include a necessary party to the litigation.   The TSA screens passengers against the watchlist at the airport and manages redress requests from travelers; the separate Terrorist Screening Center, which the plaintiffs had sued, creates and maintains the list itself, including deciding whether a person should be listed.  The problem with suing the TSA is that a federal statute – 49 U.S.C. § 46110 – gives federal appeals courts exclusive jurisdiction to review TSA “orders,” while limiting them to affirming, amending, or setting aside such orders, as opposed to granting broader relief like the injunctive relief plaintiffs sought here.  So plaintiffs conceivably might have been barred from pursuing their procedural challenge to the watchlist in either a district or appellate court.

Rejecting that view, the Ninth Circuit panel held unanimously that Congress didn’t intend to strip district courts of jurisdiction to review the constitutional claims here, and sent the case back to the District of Oregon.  In so ruling, the Ninth Circuit went further than it had in an earlier watchlist case before the Court, and parted company with other courts that had rejected jurisdiction, including a 2010 decision out of the Middle District of Pennsylvania.

But Latif departs from earlier post-9/11 watchlist cases in a more fundamental respect.  The harm that the Latif plaintiffs allege goes beyond the stigma of being wrongly associated with a watchlist or the intrusion of being searched and interrogated for several hours at U.S. borders.  Here, several of the young men in question had been effectively exiled, barred from returning to the United States for months despite the judicially declared “absolute” right of U.S. citizens to re-enter the country.  In some cases, the facts as alleged suggest that the government used the prospect of continued exclusion to induce cooperation with lawyer-less interrogations overseas or to coax the men to become informants.

In fact, the government itself may have recognized that barring or conditioning re-entry for U.S. citizens, even those it suspected of terrorist activities or knowledge, was legally questionable; once plaintiffs who were stranded abroad filed for preliminary relief, they were granted one-time waivers to fly home.   Nonetheless, new reports of U.S. citizens overseas blocked from returning to the United States continue to surface.  When the government’s exclusion of two watchlisted U.S. citizens first attracted attention in 2006, the practice appeared to be rare; over the last couple of years, reports of such incidents have multiplied, likely the result of tightened watchlist security measures following the 2009 Christmas Day bombing attempt.  A merits decision in Latif – should it get that far – would clarify the scope of due process rights for watchlisted individuals, including U.S. citizens stranded abroad.