Secret Jurisdiction

• Citation: Vol. 65 No. 5
• Publication year: 2016

Secret Jurisdiction

Irina D. Manta

SECRET JURISDICTION

Irina D. Manta^* Cassandra Burke Robertson^**

Abstract

So-called "confidentiality creep" after the events of 9/11 has given rise to travel restrictions that lack constitutionality and do nothing to improve airline security. The Executive Branch's procedures for imposing such restrictions rely on several layers of secrecy: a secret standard for inclusion on the no-fly list, secret procedures for nominating individuals to the list, and secret evidence to support that decision. This combination results in an overall system we call "secret jurisdiction," in which individuals wanting to challenge their inclusion on the list are unable to learn the specific evidence against them, the substantive standard for their inclusion on the list, or the process used to put them there. The Executive Branch has argued that its decision to put someone on the no-fly list should be judged by a minimal "reasonable suspicion" standard. It has further stated that any plaintiff wishing to be removed from the list must demonstrate that the government's suspicions are unreasonable, and must do so without hearing the evidence that led to those suspicions in the first place.

The momentum may have finally shifted with the litigation in Latif v. Holder, which recently led a federal court to recognize for the first time that, at a minimum, individuals have a due-process right to learn whether they are on the list and to have at least some opportunity to challenge their inclusion on the list. Many questions still remain, and no court has yet resolved the question of what "due process" means for individuals subjected to travel restrictions

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based on confidential government watchlists. We argue that a traditional procedural due process analysis is insufficient to protect individual rights when national security requires that much of the information relevant to that analysis be kept secret. To counter this deficit, we suggest that courts should incorporate elements of substantive due process by applying a unified due process standard that requires a higher evidentiary burden—and real evidence of national security benefits—before the government may curtail significant individual liberties.

I. Introduction

Flying is a ubiquitous part of many people's lives. Every day, eight million individuals fly.¹ We fly for work. We fly to visit loved ones and be present for births, graduations, weddings, and funerals. We fly to fulfill religious obligations or to go marvel at the beauty of various parts of the world. What if you were told you can never fly again? Would you feel like a prisoner in your own country? Like an exilee if trapped abroad? Certainly you would want to find out why an airline or government is telling you that you cannot board another plane ever again, or beyond one last time. If told that you have been deemed a danger to public safety, you would demand an explanation. And it better be good.

Now picture that when you ask for such an explanation, none is given to you. No more business trips, weddings, vacations, visits to relatives. Instead, you are stuck in a Kafkaesque nightmare replete with faceless bureaucrats, or with FBI agents who tell you that, sure, they can help you out—but only if you become an informant for them. When you attempt to challenge your placement on the list in court, the government first argues that national security forbids you from making any challenge at all.² After the court holds that due process requires you to be allowed to challenge your placement on the list, the

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government begrudgingly modifies its position only slightly: now, it says, you may challenge your placement on the list, but the burden of proof is on you.³ Furthermore, it argues, the court should apply a deferential "reasonable suspicion" standard—it is not enough to prove that you have not been involved in any act of terrorism, but instead, you must prove that the government has no reasonable basis even to suspect you of terrorist involvement.⁴ And for an added degree of difficulty, you must prove the unreasonableness of any suspicion about you without learning what information caused the government to suspect you in the first place and without being granted a hearing at which you might cross-examine witnesses or otherwise challenge the government's evidence.⁵

There is no way even to know if your viewpoints or religious affiliation were used in these determinations in contravention of the First Amendment because lodging a complaint to the Department of Homeland Security (DHS) or the Transportation Security Administration (TSA) will only result in "the need to ascertain that the complaint is based on a positive match to the No Fly List."⁶ Indeed, the government openly proclaims its latitude in deciding what information to use in its decisions when it states that "nominations must not be based solely on race, ethnicity, national origin, religious affiliation, or activities protected by the First Amendment."⁷ One individual on the no-fly list has alleged in his legal filings that he was treated this way "in part because of certain alleged statements that, if accurately described in the letter, are plainly protected under the First Amendment."⁸ Secrecy provides a wall behind which the government can hide unconstitutional activity and engage in discrimination of individuals whose opinions or personas are considered undesirable.

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These are the types of scenarios that thousands of individuals on America's no-fly list have encountered. As one scholar has stated, the list "operates in total secrecy. And its effect is sudden, unpredictable, and absolute."⁹ Created under the administration of President George W. Bush and maintained under that of President Barack Obama, the U.S. Terrorist Screening Center (TSC), housed within the FBI, uses its discretion to decide who should be placed on or off the list of individuals who are permitted to fly.¹⁰ And when making these decisions, scholar Jeffrey Kahn explained that officials would rather "err on the side of watchlisting. After all, why take a risk?," and further described, "Who wants to be the one to let a terrorist slip onto a plane? When the buck stops with no one, no one has a reason to stop."¹¹

The intent of the no-fly list is to identify individuals who may present a risk of engaging in terrorist activity.¹² The government asserts that its decision to add an individual to the list should be judged by a deferential "reasonable suspicion" standard—a substantive standard even lower than "probable cause," that was originally developed to assess the validity of a minor traffic stop.¹³ Congress, however, never specified the substantive standard by which to measure the risk; it merely authorized the Executive Branch to "notify appropriate law enforcement agencies, prevent the individual from boarding an aircraft, or take other appropriate action with respect to that individual" after identifying the individual believed to pose such a risk.¹⁴

The Executive Branch's overly broad interpretation of the congressional directive has created a list whose scope is neither clear nor rational, and whose effect is almost entirely disconnected from law enforcement activity. In fact, one U.S. citizen on the list alleges that when he found himself unable to fly back to the United States, he was explicitly told by the FBI that the

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government is not actually concerned about him and that he should fly to Mexico and then cross into the United States on land.¹⁵ Other individuals on the list have reportedly gotten around the list by flying on private jets¹⁶ or travelling on cruise ships.¹⁷

In addition, placement on the no-fly list or a related watchlist does not trigger many, if any, non-travel security restrictions—thus, for example, when individuals in the database sought to purchase firearms, they succeeded 90% of the time.¹⁸ Other individuals found in the Terrorist Screening Database have been approved for employment within the secure areas of airports.¹⁹ Finally, law enforcement agencies at times choose not to place some of the most dangerous people on the list because it would disrupt investigative efforts to share this information with the airlines whose charge it is to prevent the

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members of the list from boarding.²⁰ All this has resulted in a no-fly list that is both arbitrary in scope and ineffective to protect national security.

In spite of the list's ineffectiveness for law enforcement, the government has argued that disclosing particular security procedures that dictate inclusion on the no-fly list and related watchlists "could enable terrorists and other violent criminals to identify potential weaknesses in the current security system, and to circumvent or otherwise defeat the security measures mandated by the TSA in the Directives."²¹ The agency similarly stated that disclosing the names on the no-fly list would create security risks.²²

Defending against inclusion on the no-fly list thus becomes an exercise in shadow boxing.²³ Not only has the government not had to disclose the facts that led to a person's inclusion, but it has argued that the court should judge inclusion by the "reasonable suspicion" standard even though it is a secret whether that was the standard the government itself used or not.²⁴ In this setup, an individual has to prove a negative—that he is not deserving of suspicion and that the government has acted unreasonably in treating him as such—all the while not knowing what evidence, if any, led the government to be suspicious in the first place.

This Article argues that the no-fly list has suffered from the confidentiality creep²⁵ that has pervaded much of national security matters since 9/11, and that

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the way it has been operated not only lacks constitutionality but also does nothing to improve airline security. Rejecting the current model, this Article proposes a new...