Judge Expresses Doubt About Constitutionality of No-Fly List

A federal judge expressed skepticism Friday about the constitutionality of the government's no-fly list, suggesting that those who find themselves on it ought to be allowed a meaningful opportunity to clear their names.

The lawsuit challenging the no-fly list, filed by Alexandria resident Gulet Mohamed, has been winding its way through federal court for four years, and U.S. District Judge Anthony Trenga has consistently rejected government efforts to get the suit tossed out.

Friday's hearing, though, presented an additional twist: It was held one day after the FBI put Mohamed's older brother on its list of most wanted terrorists. The FBI says Liban Mohamed, 29, was living in northern Virginia until 2012 and has since left for east Africa. They say he recruited for the al-Shabab terror group in Somalia and have charged him with providing material support to al-Qaeda and al-Shabab.

Gulet Mohamed was 19 when he filed his challenge to the no-fly list in 2011. He said he was denied the right to return from Kuwait, and was beaten at the behest of U.S. authorities who questioned his travels to Somalia and Yemen. Gulet Mohamed, who was allowed to return to the U.S. after he filed his lawsuit, said he traveled to those countries to visit extended family and learn Arabic.

Gadeir Abbas, Gulet Mohamed's lawyer in the no-fly case, said the timing of the FBI's announcement -- as well as unsealing Liban Mohamed's arrest warrant in federal court, which was issued 11 months ago -- was meant to pressure a judge who has been sympathetic to his client's argument.

Joshua Stueve, spokesman for the U.S. attorney's office in Alexandria, declined comment on the allegation.

The judge did not address Liban Mohamed's situation, but he aggressively questioned the government. He suggested that the executive branch should perhaps be required to submit its case for placing a person on the list to a magistrate for review.

The government is in the midst of revising its rules to give those placed on the list some notice of why they are under suspicion, attorney Joseph Folio said.

Folio also sought to have the case dismissed by arguing that the government can't defend itself without disclosing state secrets. He said Attorney General Eric Holder personally made the decision to invoke the state-secrets privilege.

Abbas said Trenga can't rely on the administration or Congress to make changes to protect people's rights.

"Any limitations on the government's authority to place innocent Americans on watch lists will only come from the judiciary,'' Abbas wrote in his legal briefs.

Trenga said he will issue a ruling at a later date.