A federal judge in Oregon grilled Justice Department lawyers on Friday over the government's secretive "no-fly" list, questioning whether those banned from commercial air travel for suspected links to terrorism have any realistic avenue for appeal.
Government attorneys sought to defend the policy as lawyers for 13 Muslim Americans were branded with the no-fly status argued in court that their clients were denied any effective means of petitioning the government for removal from the list.
The group includes four U.S. military veterans, including a former member of the Air Force who has been separated for three years from his wife, who is stuck in Ireland with visa troubles.
The plaintiffs, who deny any links to terrorism, say they only learned of their no-fly status when they arrived at the airport and were blocked from boarding a commercial flight. They said they received no notice before or after the fact.
The American Civil Liberties Union, which brought suit against the policy in 2010, argues that secrecy surrounding the no-fly list and lack of any meaningful opportunity to object to being put on it violates their clients' constitutional rights to due process.
The only recourse an individual has for clearing one's name, they argue, is an essentially dead-end process by which they fill out a form and receive back a letter with no explanation or even a confirmation of their no-fly status.
The government contends there is an adequate means of contesting the flight ban, and that individuals listed under the policy may ultimately petition a U.S. appeals court directly for relief.
"There is a process available and it culminates in judicial review," government attorney Scott Risner said.
'RIGHT WITH NO REMEDY?'
But U.S. District Judge Anna Brown questioned whether such a procedure was feasible and suggested that the government's argument that national security is at stake fails to take the plaintiffs' rights into account.
Appellate judges are by definition limited to reviewing the record established through lower-court proceedings. Moreover, no-fly case files the government keeps contain classified information off-limits to examination by travelers in question.
Brown questioned whether an appeals court would be privy to classified information in such circumstances and how it could properly review a case otherwise.
"A right without a remedy ... is no right at all," Brown said.
Brown also expressed skepticism over the government's argument that the plaintiffs' rights were untrammeled because alternative forms of long-distance transportation, such as ocean liners, are available.
"I'm really having trouble with this," Brown said. "I don't think you can say it is just a matter of inconvenience."
ACLU attorney Nusrat Choudhury further argued that the ban publicly unfairly marked the plaintiffs "with the badge of suspected terrorists."
The no-fly list, established in 2003 in the aftermath of the Sept. 11, 2001, attacks, bars those on it from flying within the United States or to and from the country.
As of last year, it included some 20,000 people deemed by the FBI as having, or reasonably suspected of having, ties to terrorism, an agency spokesman said at the time. About 500 of them were U.S. citizens.
Judge Brown gave no indication at the end of Friday's arguments when she would rule on the plaintiff's request for summary judgment in the case.