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Emory Law Journal

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So-called "confidentiality creep" after the events of 9/11 has given rise to travel restrictions that lack constitutionality and do nothing to improve airline security. The Executive Branch's procedures for imposing such restrictions rely on several layers of secrecy: a secret standard for inclusion on the no-fly list, secret procedures for nominating individuals to the list, and secret evidence to support that decision. This combination results in an overall system we call "secret jurisdiction," in which individuals wanting to challenge their inclusion on the list are unable to learn the specific evidence against them, the substantive standard for their inclusion on the list, or the process used to put them there. The Executive Branch has argued that its decision to put someone on the no-fly list should be judged by a minimal "reasonable suspicion" standard. It has further stated that any plaintiff wishing to be removed from the list must demonstrate that the government's suspicions are unreasonable, and must do so without hearing the evidence that led to those suspicions in the first place. The momentum may have finally shifted with the litigation in Latif v. Holder, which recently led a federal court to recognize for the first time that, at a minimum, individuals have a due-process right to learn whether they are on the list and to have at least some opportunity to challenge their inclusion on the list. Many questions still remain, and no court has yet resolved the question of what "due process" means for individuals subjected to travel restrictions based on confidential government watchlists. We argue that a traditional procedural due process analysis is insufficient to protect individual rights when national security requires that much of the information relevant to that analysis be kept secret. To counter this deficit, we suggest that courts should incorporate elements of substantive due process by applying a unified due process standard that requires a higher evidentiary burden--and real evidence of national security benefits--before the government may curtail significant individual liberties.

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