When it comes to American citizens, is the FBI maintained No-Fly list unconstitutional? In the case of Yahya Wehelie, a resident of Fairfax, Virginia, that certainly is an issue:
A Fairfax County man returning home from Yemen has been stranded in Egypt for six weeks after being told he was on a no-fly list.
Yahya Wehelie, 26, said Wednesday that after landing at the airport in Cairo in early May, he was told he would not be able to board his connection to New York and would have to go to the U.S. Embassy for an explanation. Embassy officials later told Wehelie and a younger brother with whom he was traveling that they would have to wait for FBI agents to arrive from Washington.
Since then, Wehelie said in a phone interview, he has spoken with the FBI 10 times and submitted to a polygraph test. He said his attorney has advised him and his family not to discuss the FBI’s questions, but they appear to have centered on suspected American radicals living in Yemen.
[…]
Wehelie, who was born in the United States to Somali immigrants, said U.S. officials took his old passport and issued him a new one that was good only for a one-way trip to the United States. But, he said, he was also informed by an FBI agent that he cannot board any plane scheduled to enter U.S. or Canadian airspace, leaving him in a kind of limbo.
“I don’t know any other way to get home,” said Wehelie, who said he had spent 18 months in Yemen after leaving Burke to find a bride and learn Arabic. He said that he has offered to sit between two FBI agents on any flight home but that for the moment he is living in a run-down hotel in Cairo.
Apparently, Wehelie isn’t the only American citizen to face this sort of de facto exile:
Civil liberties groups say the case is part of an emerging pattern in which American citizens are barred from flying to the United States so they can be questioned overseas by U.S. agents without counsel. The Council on American-Islamic Relations cited Wehelie’s case and that of other Americans stranded abroad in a letter to Attorney General Eric H. Holder Jr. this week.
“We are concerned that FBI interrogations of American citizens in a condition of forced exile are being conducted without due process,” wrote Nihad Awad, the council’s executive director. “If the FBI wishes to question American citizens, they should be allowed to return to the United States where they will be able to maintain their constitutional rights free of threats or intimidation.”
I’m not a fan of CAIR, or of a lot of so-called “civil liberties groups,” but I have to say, that in this case they have a point. Preventing an American citizen from returning home by administratively, and without due process, revoking his ability to travel strikes me as a blatant violation of that citizen’s constitutionally protected rights. Essentially, that’s all the No-Fly list is. When it comes to foreign nationals, there isn’t quite the same concern. But where American citizens are involved, it becomes a classic case of assuming guilt and forcing proof of innocence.
Every citizen, no matter how vile, is entitled to due process of the law. In simple terms, one cannot be treated as a criminal without, in the very least, some formal charges being levied against you in a court of legal competence, and only after some minimal level of probable cause is met by the government.
Okay, that wasn’t so simple.
How about this: you can’t have your rights taken away with the mere flick of pen. The government has to show a valid reason for treating you differently than every other citizen, and even after that you must be afforded the opportunity to challenge the government’s case. Placing American citizens on a No-Fly list without any of that, sure seems to violate that due process.
Just to be clear, none of that is to say that Mr. Wehelie, or any other citizen who spends time in regions rife with terrorist networks, shouldn’t be subjected to scrutiny. Nor does it mean that the ordinary folks flying here and there should be forced to risk their lives in order to protect the rights of Mr. Wehelie, et al. Fundamentally speaking, the protection of both airplane passengers and Mr. Wehelie’s rights aren’t mutually exclusive. However, the way that the No-Fly list is handled at this point is only working for half the equation.
If we presume that the government had good cause for placing Mr. Wehelie on the list in the first place, then in order to pass constitutional muster it stands to reason that such cause should be presented to an independent arbiter. That arbiter would then decide, based on transparent rules of law, whether Mr. Wehelie should in fact be placed on the No-Fly list. In the event that sensitive, classified information is involved (which would surely be the case some of the time), then this process could be done much in the same way that the FISA court operates.
Afterwards, Mr. Wehelie would have to be afforded the opportunity to challenge the ruling, which may necessitate some sort of escort back to the U.S. Under this rubric, everyone’s rights are protected, and passengers’ lives are not placed at risk. Win-win.
What we cannot continue is the government practice of secretly penalizing American citizens and allowing them or intending for them to fester in foreign lands with no ability to exercise their rights.
We can have homeland security and liberty, without creating a class of ‘presumed guilty’ abroad.
