SANTA FE — A Las Cruces man and 12 other people who say they were arbitrarily banned from air travel by a mysterious federal decree seemed to gain ground Friday in their lawsuit against the U.S. government.
U.S. District Judge Anna J. Brown of Portland, Ore., said the government's argument about alternatives to air travel for those on the "no-fly list" did not take into account the reality of modern life and "seems fundamentally wrong."
One of the plaintiffs is Steven Washburn, 58, who is an Air Force veteran and formerly was a firefighter for the city of Las Cruces and NASA's White Sands Test Facility.
Washburn declined to comment about the lawsuit when reached at his home Friday. But the American Civil Liberties Union of New Mexico said he had endured enormous hardship because the government for undisclosed reasons will not let him fly.
In addition to the fundamental unfairness of being barred from airplanes without explanation, the government's policy had separated Washburn from his wife, the ACLU said.
She has been living in Ireland for three years because she cannot obtain a visa to travel to the United States, said Micah McCoy, a spokesman for the ACLU of New Mexico.
Washburn and the others who are suing want the government to remove them from the no-fly list or compel the government to tell them why they are on it. All the plaintiffs are U.S. citizens, according to their suit, filed in June 2010 in Portland's U.S. District Court.
ACLU lawyers are representing Washburn and the other plaintiffs.
"We're asking the court to finally put a check on the government's use of a blacklist that denies Americans the ability to fly without giving them the explanation or fair hearing that the Constitution requires," said Nusrat Choudhury, one of the ACLU lawyers.
The government's position is that there are alternatives to air travel, such as sea and land.
Government attorney Scott Risner said placement on the list does not stop people from traveling, and that stopping people from using one mode of travel does not deprive them of their liberty.
But The Associated Press reported from Portland that Judge Brown said alternate forms of travel may not be adequate to visit a dying relative in time. She said the plaintiffs "don't have transporter rooms like 'Star Trek.' "
Washburn, born and raised in Las Cruces, says he was denied boarding by the government on a commercial flight from the United Kingdom to the United States.
Then he attempted to fly from London to Mexico in order to enter the United States by land, but his flight was diverted back to London several hours after takeoff.
The airline, according to his suit, diverted Washburn's flight because of his inclusion on the no-fly list, "as there was no known legal barrier to his being permitted to fly to or transit through Mexico."
Washburn thereafter undertook a journey that lasted more than 50 hours and required him to travel by plane from Dublin to Frankfurt, Frankfurt to Sao Paulo, Sao Paulo to Lima, Lima to Mexico City, and Mexico City to Juarez.
His attorney said he endured hours of detention and interrogation by Mexican authorities in Mexico City and Juarez.
Travel restrictions separated him from his wife, a Spanish citizen who remains in Ireland to this day, the ACLU said.
When Washburn joined the lawsuit against the government three years ago, he told Ashley Meeks of the Las Cruces Sun-News that he was bewildered by the government edict to keep him off airplanes.
"I have absolutely no idea why I'm on the list. No one will tell me why or give me a way to get off the list," he said at the time.
Another plaintiff, Abe Mashal, is a U.S. Marine Corps veteran and dog trainer. He said he had lost clients outside of driving distance from his home in Illinois, and was unable to travel to Hawaii for his sister-in-law's graduation.
Defendants in the suit are Eric Holder, in his official capacity as U.S. attorney general, Robert S. Mueller III in his capacity as FBI director and Timothy J. Healy in his capacity as director of the Terrorist Screening Center.