Plaintiffs win round in Oregon no-fly suit

Judge hands partial victory to plaintiffs in Portland, Ore., no-fly lawsuit

PORTLAND, Ore. (AP) -- A federal judge ruled that people placed on the U.S. government's no-fly list have a constitutionally protected interest in traveling by air, and the right to due process when it's denied.

U.S. District Judge Anna J. Brown of Portland, in an opinion released late Wednesday, rejected the government's assertion that people on the no-fly list can travel by other means, and that being on the list does not deprive them of their liberty. She said it ignores "the realities of our modern world."

The American Civil Liberties Union filed the lawsuit on behalf of 13 people on the no-fly list. The plaintiffs want to be removed from the list or told why their names appear.

"This decision is a critically important step towards vindicating the due process rights of Americans on the no-fly list," said Nusrat Choudhury, the ACLU lawyer representing the plaintiffs. "For the first time, a federal court has recognized that when the government bans Americans from flying and smears them as suspected terrorists, it deprives them of constitutionally protected liberties, and they must have a fair process to clear their names."

Brown's decision, however, is only a partial one. She asked the government for more information about its redress procedure to help her determine whether it satisfied due process requirements for the plaintiffs.

"We're very confident that the court, when it gets this information, will rule in our favor," Choudhury said. "And that's because the government has a policy of not providing any explanation to people who are on the no-fly list about why they were put on the list."

Justice Department lawyer Scott Risner, who argued the case in June, referred questions to a government spokeswoman who was not immediately available.

Would-be travelers banned from a flight can fill out an online form with the Department of Homeland Security. The government examines it and makes a decision on the traveler's status. Those unhappy with the result can get a judicial review, but not a hearing where evidence would be presented.

The Justice Department said the procedure strikes an appropriate balance by providing a review without requiring the release of classified information.

The no-fly list, a well-protected government secret, decides who is barred from flying at U.S. airports, and is shared with ship captains and 22 other countries. The FBI has said the list requires secrecy to protect sensitive investigations and to avoid giving terrorists clues for avoiding detection.

The plaintiffs argue that being on the list harms their reputations. Several who filed suit said they have been surrounded at airport security areas, detained and interrogated.

One of the plaintiffs, Abe Mashal, learned he was on the list when trying to fly from Chicago to Spokane, Wash, according to the lawsuit. The Marine veteran said his presence on the list has cost him business clients, and stopped him from attending a wedding, a funeral and a graduation. Another, Stephen Durga Persaud of Irvine, Calif., was not allowed to board a flight from the U.S. Virgin Islands to Miami. He ended up taking a five-day boat trip and a four-day train ride to get back to Southern California for the birth of his second child. Others were unable to visit relatives in the Middle East.

The lawsuit filed in 2010 moved between district and appellate courts before a decision last summer by the 9th U.S. Circuit Court of Appeals put the lawsuit back under Brown's jurisdiction. Brown has asked the parties to submit a joint status report by Sept. 9.


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