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Judge strikes down parts of No Fly List lawsuit

Jamal Tarhuni was placed on No Fly List in 2012


by: TIMES PHOTO: JAIME VALDEZ - Jamal Tarhuni, left, has sued the federal government after he says his constitutional rights were violated when he was placed on the federal No Fly List, which bars suspected terrorists from boarding U.S. flights.A Tigard man’s lawsuit against the federal government hit some turbulence last week, after a federal judge threw out several legal claims challenging the FBI’s No Fly List, which he said barred him from returning home from a trip to Libya in 2012.

Jamal Tarhuni, 57, filed a lawsuit in 2013, after he was apparently placed on a terrorist watch list. Tarhuni, a naturalized U.S. citizen who immigrated to America nearly four decades ago, said his civil and constitutional rights were violated after FBI agents interrogated him about his business in Libya following the overthrow of Muammar Gaddafi in 2011.

Tarhuni, was in Libya in 2011 to deliver medical supplies for Tigard-based Medical Teams International when his name was placed on the federal No Fly List, a list maintained by the FBI, which bars certain individuals suspected of terrorist activity from boarding planes that enter U.S. airspace, a list he remains on to this day.

Tarhuni’s lawsuit names FBI Special Agent Brian Zinn and FBI legal attaché Horace Thomas as the men who allegedly interrogated him. Other defendents include U.S. Attorney General Eric Holder, FBI Director James Comey, U.S. Secretary of State John Kerry and Timothy Healy, the director of the FBI Terrorism Screening Center, which maintains the No Fly List.

Tarhuni said he has missed out on potential business and employment opportunities overseas, has had to give up helping Medical Teams International with their work in Libya and has missed out on family events.

In addition, having to explain why he is unable to travel by air to meet his commitments has stigmatized him as a terrorist, he said.

But in an opinion released Wednesday, March 26, U.S. District Judge Anna Brown threw out several of Tarhuni’s claims, including his claim that he should have been allowed to return home under the 14th Amendment. Brown also said the FBI agents who interviewed him were immune from any litigation because they were just doing their jobs.

“Plaintiff has not alleged (FBI Special Agent Brian Zinn and legal attaché Horace Thomas) were the federal agents directly responsible for stranding him abroad,” Brown wrote.

In addition, Brown said, there is nothing to stop the FBI "from interviewing citizens stranded abroad as a condition of boarding a flight back to the United States."

'Only practical mode of travel'

Brown did side with Tarhuni on a few key claims, saying that international travel was a constitutional right to all Americans.

“Given time and financial realities, travel by air is the only practical mode of international travel for the vast majority of travelers,” Brown wrote. “Moreover, it is undisputed that inclusion on the No-Fly List prohibits listed persons from boarding commercial flights to or from the United States and from flying over American airspace. Thus, the practical necessity of traveling by air to travel internationally means being on the No-Fly List is virtually a complete bar to such travel by American citizens.”

In addition, Brown agreed Tarhuni’s claim that his due-process rights may have been violated because he was never told why, or if, he was placed on a list, and he did not have any meaningful or timely opportunities to appeal to an independent forum.

But Brown said more information on that is needed before she can make a final decision.

“The court cannot conclude as a matter of law that the … process provides sufficient procedural safeguards to defeat (Tarhuni’s) procedural due-process claim,” Brown wrote. “Before the Court can make a final determination, however, a substantial development of the record is required.”

It is up to the Terrorism Screening Center to determine whether any name be removed from the list, and has final say whether or not any action is taken.

Tarhuni reportedly appealed his inclusion on the list to the TSC, but was told in July 2013 that “no changes or conditions are warranted at this time.”

Tarhuni is one of three federal lawsuits challenging the No Fly List in Portland. A second lawsuit, filed by Portland resident Yonas Fikre, alleges that he was tortured in the United Arab Emirates for more than three months after he refused to become an informant for the FBI and spy on his mosque, Masjed As-Saber, in Portland.

Tarhuni attends the same mosque. Both men are represented by attorney Thomas Nelson.

The mosque’s imam, Sheikh Mohamed Abdirahman Kariye, is also on the No Fly List and one of 13 plaintiffs in a lawsuit the American Civil Liberties Union filed against the U.S. government.

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