The United States' system of screening commercial airline passengers against databases of suspected terrorists is broken. Thousands of people have been barred altogether from commercial air travel without any opportunity to confront or rebut the basis for their inclusion, or apparent inclusion, on a government watch list known as the "No Fly List." The result is a vast and growing list of individuals whom, on the basis of error or innuendo, the government deems too dangerous to fly, but too harmless to arrest. Many of these individuals, like the Plaintiffs in this action, are citizens and lawful permanent residents of the United States; some, including three Plaintiffs in this action, are veterans of the United States Armed Forces. Some U.S. citizens and lawful permanent residents have been placed on the list while traveling abroad and therefore have found themselves stranded in foreign countries, without explanation or appropriate visas, unable to return home to their families, jobs, and needed medical care in the United States. The Constitution does not permit such a fundamental deprivation of rights to be carried out under a veil of secrecy and in the absence of even rudimentary process.

In 2006, the FBI and the Transportation Security Administration [official website] 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 US Court of Appeals for the Ninth Circuit [official website] 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.