A federal judge on Friday asked whether the US government really has the right to keep people like Gulet Mohamed, a Virginia-based Somali-American, from flying without telling them why and giving them due process to fight such a designation.
Federal Judge Anthony Trenga’s pointed questions, coupled with the most-wanted designation, provide a tense backdrop as US courts and culture continue a process of coming to terms with deep constitutional questions created by America’s reaction to the Sept. 11, 2001, terror attacks in Washington, D.C., and New York.
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Last June, Federal Appeals Court Judge Anna Brown found part of the no-fly-list policy unconstitutional, ordering the US government to formulate a due process provision to give fliers a meaningful way to contest their inclusion on the list. Some 20,000 people, including 500 US citizens, are on the list, the FBI disclosed in 2014.
While Judge Trenga made no ruling on Friday, he asked several pointed questions of government attorneys at the hearing, including whether the US had ever created another program that deprived people of their liberty with near zero transparency. US authorities have said the list is, in fact, constitutional, since travelers can find other modes of transportation.
The secret no-fly list came into effect after Al Qaeda terrorists hijacked four jetliners and used them to attack the Pentagon and the two towers of the World Trade Center. The list is part of a well-guarded and concerted US anti-terror effort that critics say at times has skirted the balance between national security and constitutional rights.
In a court case that FBI lawyers have tried for four years to get thrown out, Gulet Mohamed contends that the policy violated his constitutional rights. What’s more, Mr. Mohamed, through his attorney, argued that the FBI began harassing Liban Mohamed after he tried to intervene on his brother's behalf in 2011 when Gulet was detained in Kuwait and was prevented from traveling to the US. Gulet Mohamed was allowed to return to the US after he filed a federal lawsuit, but his name remains on the no-fly list.
His lawyer contended that the FBI was playing hardball by apparently timing the unsealing of the arrest warrent against Liban Mohamed to coincide with his brother’s court hearing. The Washington Post reported that the FBI declined to address those allegations.
The agency has been accused of abusing the list before. Last April, the Center for Constitutional Rights filed a lawsuit alleging that four American Muslims were “among the many innocent people who find themselves swept up in the United States government’s secretive watch list dragnet.” The lawsuit alleged that when the men “declined to act as informants” for the FBI and to “spy on their own American Muslim communities and other innocent people,” they subsequently discovered they were on the no-fly list.
The agency has in the past contended that a low likelihood of people being mistakenly put on the list is in itself a constitutional safeguard, though it’s clear that federal judges have begun to apply more scrutiny to that standard.
Still, the FBI says its concerns about the Mohamed brothers are genuine.
“Liban Mohamed is believed to have left the U.S. with the intent to join al Shabaab in East Africa. We believe he is currently there operating on behalf of that terrorist organization,” the agency writes in its official blog. "Not only did Mohamed choose to go to Somalia and fight with al Shabaab, he took a prominent role in trying to recruit people and have them train with weapons.”
Gulet Mohamed’s attorney, Gadeir Abbas, told the Associated Press that Al Shabab had murdered the brothers' uncle and imprisoned their cousins. The FBI’s allegations “have no basis in fact," he said.