[JURIST] The US Court of Appeals for the Ninth Circuit [official website] heard arguments Friday from the American Civil Liberties Union (ACLU) [advocacy website] which is appealing a dismissal of a challenge over the no-fly list maintained by the Transportation Safety Association (TSA) [official website]. The lower court [opinion, PDF] dismissed the case [JURIST report] claiming that the suit would have to be filed against the TSA itself and not the FBI [official website] and its subagency, the Terrorist Screening Center. The lawyer arguing the case for the ACLU, Nusrat Choudhury claims on her blog [ACLU blog] that the government concedes the TSA “plays only a ministerial role” and that the correct agency was sued in the first case. Choudhury maintains that:

It is unconstitutional for the government to put people on secret lists and deny them the right to travel without even basic due process. Without a meaningful way for people to challenge their inclusion on the list, there’s also no way to keep innocent people off it.

The ACLU is hoping the appeals court remands the case back to the district court with the jurisdictional question resolved.

In 2006, the FBI and the TSA agreed to pay the ACLU $200,000 in attorney’s fees to settle a case brought by the civil rights organization in 2003 challenging the government’s no-fly list [JURIST report] and requesting the disclosure of records. The documents noted that construction of the list was based on “two primary principles,” but that there were “no hard and fast” rules governing decisions of who was put on the list. The Ninth Circuit ruled in 2008 that those placed on the government’s “no-fly list” can challenge their inclusion on the list [JURIST report] in federal district courts. The court held that the Terrorist Screening Center, which actually maintains the list, is a subsection of the FBI and is therefore subject to review by the district courts. Also in 2008, the DOJ Office of the Inspector General (OIG) [official website] issued a report [text, PDF] saying that the FBI had submitted inaccurate information to the list [JURIST report], that the information was rarely reviewed before its submission and even if discrepancies become apparent they were often left unchanged.