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A few weeks ago, Jay Stanley posted here about some of the dangers of 鈥淏ig Data,鈥� a sanitized term for data mining. When it鈥檚 employed by government security agencies in the search for terrorists, Jay wrote, there鈥檚 a substantial risk 鈥渢hat people will be tagged and suffer adverse consequences without due process, the ability to fight back, or even knowledge that they have been discriminated against.鈥�

The government鈥檚 secret watch lists for suspected terrorists 鈥� including the No Fly List 鈥� provide a cautionary example. We don鈥檛 know what kind of 鈥渆vidence鈥� or innuendo is sufficient to land someone on the No Fly List, because the government won鈥檛 tell us. The FBI has created a 鈥溾�� page on its website, in which it explains that U.S. citizens may be placed on terrorist watch lists if 鈥渢here is a reasonable suspicion that they are known or reasonably suspected of terrorism鈥� 鈥� but that鈥檚 word soup, not a proper legal standard. What does it mean for the government to 鈥渟uspect鈥� that someone is 鈥渟uspected of terrorism鈥�? It means, in practice, that the government can place anyone on a watch list, on the basis of anything: an intercepted email, a suspicious association, a travel itinerary 鈥� or some algorithmic combination of all of those.

And once you鈥檙e on a watch list, you鈥檙e entirely at the government鈥檚 mercy if you want to get off. We鈥檝e challenged this regime in federal court on behalf of fifteen U.S. citizens and legal residents who were not allowed to board flights but have never been given any explanation or opportunity to object. On Friday, my colleague Nusrat Choudhury appeared before the Ninth Circuit Court of Appeals to argue that placing our clients on the No Fly List without providing them any opportunity to confront and rebut the 鈥渆vidence鈥� against them is .

You can listen to the argument . I鈥檓 always a little amazed when intelligent and collegial government lawyers stand up in court to defend the indefensible, but even by those standards, Friday鈥檚 hearing stood out. Chief Judge Alex Kozinski had a simple question for the government attorney: what would you do if you found yourself on the No Fly List? After some hemming and hawing, the attorney said that he would seek 鈥渞edress鈥� from the Department of Homeland Security 鈥� even though DHS does not place people on the No Fly list and has no authority to remove them (that鈥檚 the FBI鈥檚 job). Because, the lawyer conceded, DHS would not be able to confirm or deny whether he was on the list, he would then seek review in a federal appellate court. And what would the court be able to do?, asked Judge Kozinski. Not much, said the government lawyer. In fact, the lawyer would not even concede that a federal court possessed the authority to order someone removed from the No Fly List.

In other words, according to the United States government, the only redress that is available to a watch-listed citizen is to hope that some government bureaucrat will correct a mistake or change his mind. Judge Kozinski seemed frustrated by the government鈥檚 equivocation. 鈥淪o many words,鈥� he said during an earlier exchange. 鈥淪o little meaning.鈥�

The Due Process Clause of the Fifth Amendment doesn鈥檛 have very many words, but if those words are to retain their meaning, the Ninth Circuit will have to put a check on the government鈥檚 ability to blacklist its citizens without recourse.