Former U.S. Marine Placed On ‘No Fly’ List, Sues FBI

Ayman Latif, a disabled Marine veteran, tried to fly from Egypt to the U.S. earlier this year. But then he discovered that his name was on the "No-Fly List," and he's been unable to complete the journey for about six months. Host Michel Martin talks with Latif and his attorney, Ben Wizner, of the American Civil Liberties Union. Also joining the conversation is former Department of Homeland Security official Stewart Baker. He says that while the FBI could implement better protocols for placing people on the “No Fly List,” such a roster is essential to keep America safe from terrorists.

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MICHEL MARTIN, host:

Here is a travel story for you. It's actually much more important than that. Here it is. A U.S. citizen, a former Marine, in fact, along with his wife and daughter, moved to Egypt from Miami in 2008. Earlier this year, after getting settled in their new home, they went to the airport to make a trip back to visit family in the U.S., but they never made it. The husband had apparently been placed on the no-fly list, barred from getting on a plane back to his own country.

Now, it might sound like something out of a Cold War era novel, but it is not. This is exactly what happened to Ayman Latif. He says he has spent months trying to figure out if he is indeed on the no-fly list, why he may have been placed on the list. And if so, how to get his name off. And he's not alone in being in limbo about his status. The American Civil Liberties Union has filed suit on his behalf and nine other American citizens who believe they have been wrongly subjected to the flight ban.

We were intrigued by the question of under what authority the U.S. government can ban a citizen from his own country. In a few minutes, we'll speak with a former assistant secretary of the Department of Homeland Security. But to start, Ayman Latif joins us on the phone from Alexandria, Egypt. And with us from our bureau in New York is ACLU lawyer Ben Wizner. He's filed suit on behalf of Latif, as we said, and nine other American citizens who have apparently been placed on the no-fly list. Welcome to you both. Thank you for joining us.

Mr. BEN WIZNER (Lawyer, ACLU): Thank you.

Mr. AYMAN LATIF (Former U.S. Marine): Thanks for having me, Michel.

MARTIN: Mr. Latif, will you start set it up for us. You went to the airport with your family to come back to the U.S. What happened?

Mr. LATIF: We made it to the airport, the outside baggage check gentleman approached us and he asked the porter were we traveling back to the United States. And when he confirmed that we were, he took our passports and he started to speak on his cell phone. He handed us back our passports and he put us in a business class line and we waited there for a while. And the receptionist basically told us that we couldn't board the plane.

MARTIN: For what reason?

Mr. LATIF: Well, when I asked her why, you know, she said, well, we received some message from somewhere. And then I said, well, what message, you know? She said, I don't know, sir, I'm just reading what I have in front of me on my computer. And then I asked to speak to a supervisor and he confirmed that the message had indeed come from the United States Embassy. And I asked to speak to someone who was higher than him and he said he was the only person there.

But if I wanted to speak to someone from the embassy, then he would call. I did speak to two officials that night and they both had no idea why I was banned from flying or why I wasn't permitted to board the plane.

MARTIN: What level of authority did you speak to? You talked to two embassy officials, with members of law enforcement, two members of the U.S. Embassy. And, you know, just to clarify, you were born in the United States.

Mr. LATIF: Yes.

MARTIN: And you were traveling under a U.S. passport.

Mr. LATIF: Yes.

MARTIN: Okay. Do you mind if I ask why you moved to Egypt?

Mr. LATIF: I have an interest in studying the Arabic language. I actually want to be a professor one day and get my PhD in foreign languages, if I can. So I chose to immerse myself in a place where the native speakers were living.

MARTIN: There has been a concern about American citizens who have embraced Islam and then become attracted to a radical version of the religion. And then traveling to other countries for religious study where they then become sort of further in the sway of these individuals. So I would like to ask whether you think that's a legitimate concern and was that part of your intention in travel?

Mr. LATIF: I do think that is a legitimate concern. Everyone should be concerned about those type of issue, whether it be, you know, radical Islam or radical something else. You know, the end result is the same, so everyone should be concerned about those things. But you have to figure out how to protect U.S. citizens from that thing while it's at the same time protecting their rights, you know? Because everybody who accepts Islam is not a radicalist and everybody who tries to learn about their faith is not a radicalist.

MARTIN: Mr. Wizner, will you pick up the story from here? As I mentioned, the ACLU has filed suit on behalf of Mr. Latif and nine other citizens. Can I ask, how did you hear about the case and who are you suing and under what authority, under what grounds?

Mr. WIZNER: We began, especially after the 25th of December and the failed attack on the airliner in Detroit, to hear from many, many individuals who without any notice or explanation, showed up at airports in the United States and abroad and were simply not permitted to board. They were not told why, they were not told whether they were on a list. They were not told what they could do to get off.

The only possible process that was offered to them for getting off was to go to a website run by the Department of Homeland Security and put in their names and hope that some bureaucrat somewhere would either correct a mistake or change his mind. And this is an extremely Kafkaesque situation for people, especially people like Mr. Latif, who, you know, had the effect of being kept out of their own country by virtue of this secret bureaucratic process with absolutely no transparency and no meaningful way to object.

You know, I should say, long before we went into court, we tried in every possible way to resolve these situations with officials in Washington, in the FBI, in the Department of Homeland Security and we were really met with a blank stare. No one would do anything to help. And so the lawsuit is against the FBI, which is really responsible for running the no-fly list. The FBI decides who is going to be put on the no-fly list and who can be taken off, even though it's the TSA, the Transportation Security Agency and the Homeland Security administration that most Americans interact with.

And the lawsuit says a couple of things. It says if you're going to have a list like this, there has to be some way for Americans to object. There has to be someplace they can go to confront the evidence or innuendo that landed them in the situation so they can get themselves off. And for people like Mr. Latif, the lawsuit says there is absolutely no legal basis for casting a U.S. citizen into involuntary exile.

And I think that even the government will concede that they have no legal authority to keep a U.S. citizen out of the country. Now I think they're hiding behind this no-fly list. I think what they would say is if Mr. Latif could somehow show up at a U.S. border, I don't know if he's supposed to take canoe up the Nile and hope that it can, you know, eventually reach Queens, that they would let him into the country.

MARTIN: You raise a legitimate question though, is that, was there any suggestion that if Mr. Latif could arrive at a U.S. border by other means, then he would be able to enter the country?

Mr. WIZNER: Well, there's really no doubt.

MARTIN: If you were to take a ship, for example.

Mr. WIZNER: It's quite clear that if he were to arrive at a U.S. border he might be questioned, but there's no legal basis for keeping him out of the country. The problem is that unless he's able to fly, every other way of getting from Egypt to the United States would require him to pass through other countries. And his right of return to the U.S. can't be conditioned on the willingness of other countries to let him pass through. Now, we have other plaintiffs in this lawsuit who tried to travel to the U.S. through Mexico but were turned back, who tried to travel to the U.S. through Canada, but were turned back.

And so the United States has an affirmative obligation to remove any of those barriers and they can't simply say, well, we hope the other countries in the world will let you pass through and make your way to our borders. The really one practical way for him to get home is to do so by flying.

MARTIN: At what venue is this suit taking place? Because what you're argument is is that in part that there is no process in place to seek redress. So you're suing the FBI where?

Mr. WIZNER: Well, that's right. So we have brought a lawsuit in federal court in the United States. And we have said that the operation of this no-fly list has violated the constitutional rights of the plaintiffs in this case and many, many others. And I should say, since we filed the case, we've been contacted by numerous other people who are on this list.

The case was filed in a federal court in Oregon and sometime soon the government will have to go before a federal judge and explain why it's constitutional for the executive branch, through a secret process, to deprive people of these fundamental rights without really any way of objecting. Now, I think the government understands that the situation of citizens abroad is indefensible.

And I should point out that since the lawsuit was filed, the government has quietly reached out to some of the plaintiffs in the case who find themselves abroad and said: We won't interfere with your coming back to the United States. But what they haven't said is we confirm that you're on the no-fly list. And what they haven't said is, once you're back in the U.S., you'll be off the list.

So Mr. Latif, even if he's permitted to come back to the U.S., the government has not said that he can then return to Alexandria to resume his studies. And so the case will continue until either Congress creates a fair process for Americans in this situation or a federal court orders one.

(Soundbite of music)

MARTIN: We need to take a short break, but we'll continue our conversation about the no-fly list with Ayman Latif, ACLU lawyer Ben Wizner. And we'll also hear from a former official with the Department of Homeland Security who defends the use of the no-fly list. Please stay with us.

This is TELL ME MORE from NPR News. I'm Michel Martin.

(Soundbite of music)

MARTIN: I'm Michel Martin and this is TELL ME MORE from NPR News.

Coming up, it's long been known that black and Latino kids are more likely to die in drowning accidents than other kids. The question is why? We speak to a researcher who tried to find out. That's later. But, first, we want to continue our conversation about the effect of the no-fly list on a small group of Americans - it's not clear just how many - who are living abroad who have been prevented from returning to the U.S. because of the no-fly list.

In a moment we'll hear again from Ayman Latif. He's an American living in Egypt who says he's been unfairly placed on this list and this has been preventing him from coming home. We'll also speak with his attorney, Ben Wizner of the American Civil Liberties Union. But now we go to Stewart Baker. He's a former assistant secretary for policy with the U.S. Department of Homeland Security. He was the first to hold that position. He's also the author of a new book called "Skating on Stilts: Why We Aren't Stopping Tomorrow's Terrorism."

He interrupted his travels to join us from Portland, Oregon. Welcome, thanks for joining us.

Mr. STEWART BAKER (Author, "Skating on Stilts: Why We Aren't Stopping Tomorrow's Terrorism"): It's a pleasure to be talking to you.

MARTIN: First of all, I wanted to ask the limbo question here. There doesn't ever seem to have been any acknowledgement that such a list exists. Does such a list exist?

Mr. BAKER: Oh sure. And I think it's widely acknowledged. There's a no-fly list and people are put on it and taken off it based on the information that is available to the government at the time and that they made some mistakes and took a few people off of that list mainly based on people submitting information through the process that the ACLU doesn't like of providing information, explaining why you don't think you should be on the list and asking the government to review the evidence to make a determination about whether the list is appropriate in your case.

That is a pretty common mechanism these days and it's been used quite a bit in the last few months.

MARTIN: What is the rationale for allowing people or requiring that people find out that they are barred from the U.S. in this fashion, which is that you essentially, you buy your ticket, you present yourself at the airport and all of a sudden it says you can't fly? Is there a rationale for that?

Mr. BAKER: No. I think it would be possible and wouldn't surprise me if you could find that out earlier than the day you show up at the airport. A lot of travelers can get that information well before an hour prior to takeoff.

MARTIN: I know. But that's we're talking about we are specifically focused on the issue of American citizens here.

Mr. BAKER: Right.

MARTIN: And so that question applies. We are not accustomed to in the United States of being considered guilty before we're proven innocent.

Mr. BAKER: Well, the problem here, if I can, the problem is there are certain people who really shouldn't be on planes. It's very dangerous to have them flying. And for those folks, the decision to say, we're just not going to let them on the plane because of our concern for the safety of others on the plane is essentially the determination that has to be made. And you can't decide, well, we're going to let them fly based on a hearing that a judge has where we demonstrate what the evidence is against the person. Make it public. Perhaps result in blowing some sources and methods that shouldn't be blown just to establish that somebody should stay on the no-fly list.

MARTIN: So is it the position of the U.S. government, at least to this point, that even if the cost of potentially abrogating the rights of one citizen and not having a clear process to clear his or her name from the list is worth it if you can bar someone from the country who may have a malicious purpose, even if that person is a citizen.

Mr. BAKER: Yeah. The no-fly list has always included some Americans. And so it's always been the case that some Americans are not allowed to fly because they've been put on the list. And their only real redress is this process that goes through DHS asking them to take another look at the evidence, and then asking for an administrative law judge to review that determination. That's always been the case. It creates a special problem for Americans abroad because if they fly over the U.S. to get back, they're in violation of the no-fly list.

I did think that it was a little unusual to say this is a lawsuit somehow aimed at Mexico and Canada in saying that the government has an obligation to force the Mexican government to allow people who are suspected terrorists to land in their territory. That was a pretty remarkable assertion on the part of the ACLU.

Mr. WIZNER: Well, you know, this is Ben Wizner from the ACLU. That's not at all what the ACLU contends. What we're saying is, when the government tells citizens who are stuck abroad, you can come back to the U.S. but you can't fly. What they're really saying is you have to depend on the mercy of these other countries to come through. And what we're arguing is precisely the opposite, that the United States should find a safe way subject to appropriate screening procedures to allow people who are abroad to fly to the United States. I mean, I think the alternative is they're saying, we'll let you be the problem of the rest of the world.

Mr. BAKER: I think it's quite possible for people to fly to Canada...

Mr. WIZNER: It's not.

Mr. BAKER: ...without flying over the United States. And youre saying that the Canadian government is making a decision...

Mr. WIZNER: No...

Mr. BAKER: ...that they dont want no-fly...

(Soundbite of laughter)

Mr. BAKER: ...candidates to come to Canada and they have that right to say that.

MARTIN: Mr. Baker, can I ask you a simpler question?

Mr. BAKER: Yeah.

MARTIN: Is there any legal authority by which the United States can say to a citizen who is abroad, you may not return to this country?

Mr. BAKER: I know of none.

MARTIN: And so, if Mr. Latif and the other individuals on the list could somehow get to the United States by other means, other than getting on an airplane directly headed to the United States it's your contention that they could come?

Mr. BAKER: Yeah. I believe that they could land in Montreal and be in the United States in two hours.

MARTIN: And Mr. Wizner, do you know if that is true from the experience that clients of the ACLU's have had?

Mr. WIZNER: Well, look, this entire program is shrouded in secrecy. We have no idea whether the behavior of Mexico or Canada is because the U.S. has asked them to share the no-fly list or whether they have their own reasons. But our plaintiffs who have tried to fly through Canada or Mexico have not been allowed to board those planes either.

And so the position the U.S. is putting its own citizens in, it's really casting them into exile. It's saying, you have no practical way of getting here. And let's not make any mistake here, the U.S. could safely repatriate any of these people. If the United States captured Osama bin Laden abroad, you wouldnt say they couldnt safely fly him back the United States. Of course, they can.

What's actually going on in a lot of these cases is they're using the no-fly list as pressure on these U.S. citizens and trying to ask our plaintiffs to become informants in their own communities and saying, we'll take you off the no-fly list if you agree to go back home and give us information about people in your own community.

MARTIN: Is there...

Mr. WIZNER: And I want to say one more thing. I do want to say one more thing.

MARTIN:. Well, is there any evidence that that's the case with Mr. Latif? I mean, Mr. Latif, were you asked...

Mr. LATIF: That is the case. That is the case, you know.

MARTIN: But was this presented as a quid pro quo? If you answer these questions to our satisfaction, you will then be allowed to travel - was that...

Mr. LATIF: Basically it was said that way. Like when I - the first day - they questioned me two days in a row. The first day they told me, well, Mr. Latif, youre not being forthcoming with us. This is what the wordage that they used, youre not being forthcoming with us. The second day they said, okay, youve been more forthcoming with us. And then when I asked them, okay, so what will be the outcome of this? They said, we will recommend to headquarters that you be given a pass to go back to America.

MARTIN: Okay.

Mr. LATIF: This is what they said.

MARTIN: Okay.

Mr. LATIF: But they didnt. They didnt do that.

MARTIN: All right. Mr. Baker - okay.

Mr. LATIF: And when tried to contact them, they didnt respond to me.

MARTIN: I appreciate that. Mr. Baker's time is limited, so we're going to have to let him go. But before we let you go, Mr. Baker, I do want to ask, is it your view - given that youve given a lot of thought to the question of whether or not the U.S. is successfully stopping terrorism, do you think that the no-fly list is working well and is there any change you would make?

Mr. BAKER: I dont think that the no-fly list by itself is a terrific instrument for making policy. It's very, you know, youre either on or youre off, and that creates a set of problems. I'd like to see a situation in which we looked much more closely at individuals, looked for terrorists rather than just looking for weapons.

MARTIN: And even if they're U.S. citizens you would argue that there are U.S. citizens...

Mr. BAKER: You know, I dont think we'd be happy if a U.S. citizen who was on the list got on a plane in San Francisco and brought it down before it arrived in Chicago. That's a very serious concern.

MARTIN: Stewart Baker is a former assistant secretary for policy with the Department of Homeland Security. He was the first to hold that position. He's the author of "Skating on Stilts: Why We Aren't Stopping Tomorrow's Terrorism." He's also a partner in the Washington office of the international law firm Steptoe & Johnson. And he joined us from Portland, Oregon on the phone.

Thank you so much for speaking with us.

Mr. BAKER: Great to talk to you.

MARTIN: And Mr. Wizner and Mr. Latif, I'm going to ask a couple more questions. Mr. Latif, what's the status of your situation now? Mr. Wizner implied that youve been given some word that you may or are able to fly now. Is that true?

Mr. LATIF: Well, since the lawsuit, they promised me that they were going to give me a one-time waiver to fly back and that was before the lawsuit. But then after the lawsuit they started contacting me about that one-time waiver.

MARTIN: Do you find that acceptable or not?

Mr. LATIF: Well, I dont think that's acceptable because I think I should be off the list. You know, I'm not only a U.S. Marine, but I'm also a disabled vet. And because I missed my appointments in the U.S. to be evaluated, now the VA administration is saying that they're going to cut my benefits from what they are now to zero. And I'm facing a lot emotional distress, and my family as well, because we haven't seen our family in so long. And I just think that this is just unacceptable and they should work out a better way to deal with their citizens, a better way.

MARTIN: A final thought from you, Mr. Wizner. You heard me press the question with Stewart Baker of whether putting these restrictions on American citizens is worth it. And his argument is that it is. What is your response to that?

Mr. WIZNER: This is not a serious security policy. Every single one of our plaintiffs abroad who was sent away from the airport was sent directly to the U.S. embassy to raise their complaints. Now, embassies are well-known terrorist targets and if the government thought that these people were terrorists, they wouldnt have been sending them into embassies in Sana'a, Yemen, and in Cairo, Egypt, and Croatia. So I dont take seriously this idea that, you know, the government knows which people are too dangerous to be on planes, that these people are to scary to fly but not scary enough to arrest.

If the government has actual evidence that someone is a threat to terrorism, they shouldnt just keep them off a plane. They should keep them off a bus, they should keep them off a boat, they should keep them out of an embassy, they should arrest them. This is really a way for the government to punish people without any such evidence and its really unconstitutional.

MARTIN: Ben Wizner is an attorney with the ACLU. He has filed suit on behalf of 10 American citizens who have apparently been placed on the no-fly list, wrongly in their view. Ayman Latif is one of them. He joins us on the phone from Alexandria, Egypt, where he has been with his family, since being barred from coming back to the United States on a family visit. And I thank you both so much for speaking with us.

Mr. WIZNER: Thank you very much, Michel.

Mr. LATIF: Thank you.

MARTIN: I should mention, we called the FBI for a response to the statements you heard from Mr. Latif and Mr. Wizner. Weve not heard a response back yet from the bureau, but we will certainly let you know if and when we do.

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