Federal judge rules U.S. no-fly list violates Constitution

http://www.reuters.com/article/2014/06/24/us-usa-noflylist-idUSKBN0EZ2EU20140624

by Shivetya • 12 years ago

287 83 12 years ago

> individuals listed under the policy may ultimately petition a U.S. appeals court directly for relief

Why isn't it the other way around? Shouldn't they have to prove to a judge that there is reasonable suspicion you are or have been engaged in terrorism before they can interfere in your affairs?

higherpurpose2• 12 years ago

Guilty until proven innocent.

adventured3• 12 years ago

You're absolutely correct. They should have to provide evidence proving legitimate concerns about the person in question, preferably to a civilian judicial court that is public, and each person has to be manually confirmed to be a danger and then put on the list.

Then there should be a transparent, straight-forward way to challenge it.

higherpurpose2• 12 years ago

Now if only we'd get a similar ruling for no-warrant "border" searches, where border can mean tens of miles from the actual border.

tobinfricke• 12 years ago

Apparently it has been asserted that this special border region extends inward 100 miles from borders and coastlines. This swath includes around 2/3 of the US population.

http://rt.com/usa/court-upholds-laptop-border-searches-041/

https://www.aclu.org/know-your-rights-constitution-free-zone...

IanDrake• 12 years ago

Youtube has got some great videos of people enforcing their rights at these stops.

maxerickson2• 12 years ago

That happened in the 1970s:

https://supreme.justia.com/cases/federal/us/413/266/case.htm...

Then the ability to simply stop vehicles near the border was curtailed (the ruling still allows a stop given specific information):

http://supreme.justia.com/cases/federal/us/422/873/

blahedo• 12 years ago

Curtailed? I can personally confirm that as of just a few years ago, all vehicles passing various roadblocks in southern Arizona and New Mexico (including one across an entire interstate) are stopped and questioned. I assume this continues today.

XorNot• 12 years ago

About time.

There's no human being on Earth so dangerous they can't be safely put on an airplane.

unreal376• 12 years ago

I might question that statement. Being a passenger on an airplane requires you to accept a certain amount of responsibility. A person unable to behave properly and/or refrain from harming others in some way (angry, drunk, high, insane, actively trying to crash the airplane, physically abusive, having a communicable disease, etc) should probably be banned from air travel until their behavior and/or ability to harm others can be controlled.

reustle• 12 years ago

I have never smoked in my life, and I don't plan to, but did you just put people that are high in the same bucket as drunks and insane people? They are very different types of people.

Nanzikambe• 12 years ago

Hows about children? Seeing as they legally they can't accept any amount of responsibility - can we ban them too?

I mean toddlers have to count as either high or insane and probably would try crash the plane if they weren't restrained. Plus imagine how peaceful flights would be ..

Crito3• 12 years ago

I think your statement requires a slight modification: There's no human being on Earth who is not guilty of any crime that is so dangerous that they cannot be safely put on an airplane.

By all means, keep the convicted Son of Sam's of this world off my airplane. But somebody that the state finds themselves unable to convict of anything? Give me a break. Either the state can prove that they are dangerous and need to prosecute them, or they need to leave them alone.

unreal376• 12 years ago

People guilty of crimes should be tried and prosecuted. Judges should impose the sentence, and for serious crimes that probably includes a jail sentence which is the ultimate restriction of movement. If that also includes restricting their international movements as part of their sentence, fine. But simply having been at one time convicted of a crime should not automatically banned from air travel.

afarrell• 12 years ago

It is no crime to have a highly airborne-communicable disease, but it is dangerous to be on an airplane with one.

middleclick• 12 years ago

"The 13 plaintiffs - four of them veterans of the U.S. military - deny they have links to terrorism and say they only learned of their no-fly status when they arrived at an airport and were blocked from boarding a flight."

This truly fits the definition of a Kafkaesque system -- you are put on a list and you are denied justice and never told what your crime is.

Great work by the ACLU.

swalsh• 12 years ago

Only made worse by the fact that they gave a few of what is for most people the most productive years of their lives to defend it.

revelation• 12 years ago

Well, in many cases there is no crime. Given the ridiculous amount of people on the list and the way the form is designed, a large number will be on there due to a "mistake" in filling out the form.

Theres an excerpt of the form here:

http://papersplease.org/wp/wp-content/uploads/2014/02/vgtof-...

Notice how you have to check the box to indicate someone is not to be added to the list. It is completely counter-intuitive. I'd say it is just badly designed, but we're far beyond innocent mistakes here, at this point there needs to be judicial and personal responsibility for the people involved in its creation and ongoing maintenance.

chris_wot8• 12 years ago

The court raises issues of quality assurance in their discussion of the issues surrounding the case. They noted the issues but made no judgement, but it seems likely to me that the Court wasn't very impressed.

zhengyi13• 12 years ago

Apart from the cognitive difficulties this creates, forcing you to check the box means the default is to add someone to the no-fly list (see Dan Ariely's research)

unreal376• 12 years ago

This seems like the right decision to me. Being blocked from air travel is indeed a violation of liberty.

I think the U.S. government has a right to keep a list of suspicious persons, watch and monitor them, block them from visiting the United States, but there should be a way to appeal your inclusion on that list especially if you are a U.S. legal resident or citizen. You can't just remain on that list forever, unable to travel, with no evidence or justifiable proof of criminal association with terrorists. That's limbo.

jevinskie2• 12 years ago

Does this ruling imply some sort of "right to travel"?

chadgeidel• 12 years ago

I always assumed the right was implicit. (Potentially ignorant US citizen here)

ISL• 12 years ago

http://en.wikipedia.org/wiki/Freedom_of_movement_under_Unite...

unreal376• 12 years ago

From the article it seems like the judge has said that the right to freedom includes the ability to travel out of the country or across country. It's just not reasonable to require some segment of the population (500-20,000 people) to take a boat to go to Europe, with no trial or ability to appeal. Movement is restricted.

It doesn't seem like a right on it's own, so much as included in the existing right to "liberty". My 2 cents.

recursive• 12 years ago

It's not really implied by this. It's one of the rights guaranteed by the constitution.

the_watcher11• 12 years ago

The ruling does seem to imply that, however, on appeal, that will almost certainly be clarified. No judge would actually argue for a right to travel so broadly defined that it would essentially remove all regulatory power over who can and cannot fly. The ruling will likely be clarified for precedent to mean that the right to due process includes a right to quickly and effectively contest designations by government agencies in the absence of formal charges of violating a law.

The right to travel, in the broad sense of "you have the right to move wherever you want to move so long as no laws are violated," is likely covered by an umbrella of the 1st Amendment right to free speech and expression, as well as the 9th Amendment, as a negative right: you are free from being prevented from travel by means not permissible by law or Constitutionally.

chris_wot8• 12 years ago

Yes. In the ruling, the Court "has concluded Plaintiffs have a constitutionally-protected liberty interest in the right to travel internationally by air".

However, it goes further as they found that as per Mathews v. Eldridge, 424 U.S. 319, 333 (1979) the plaintiffs constitutional right to due process has been violated because:

1. not only do they have a right to travel internationally, being placed on the no-fly list stigmatises them as the government discloses the list to other parties (such as ship captains) and additionally deprives them of their liberty.

2. Notice is insufficient as there is inadequate information given to those on the no-fly list, because under government policy they neither confirm nor deny they are on the list. This leads to a catch-22 situation where you cannot appeal an erroneous decision as you cannot tell what that decision was.

Interestingly, the court said they couldn't determine if there were issues with judicial review.

There is a third test, which is to weight the government's interest against issues with disclosure, but this couldn't be determined by the Court.

The ruling is quite readable, btw. It can be found here:

https://www.aclu.org/sites/default/files/assets/latif_v_hold...

drzaiusapelord• 12 years ago

The funny thing is we just had this trial in 2010 and lost. I suspect 9/11 hysteria is dying down, so now we can have real adult conversations about things like this.

Not to mention ending or deeply cutting the drug war. Or our constant talk of FISA, NSA, etc powers. I really think the conversation that would have been unthinkable in 2001-2005 is finally happening.

Sadly, social progress happens one funeral and a time and as the older generations die off, we'll move towards shifting the pendulum back to sanity. Heck, we may even see Bush and Cheney arrested for war crimes someday. Perhaps I'm too much of an optimist, but living in constant fear and endlessly burning up our dollars fighting terrorism is just not an option, especially when we compete on a global scale with nations with 1/20th our military spending, higher standards of living, and rising economies.

cheald• 12 years ago

I don't think it's just "9/11 hysteria dying down" - post-Snowden, people are a lot more willing to accept that our government is abusive towards its own people, and thus it's harder to just wave off questions of the no-fly list with "well they're just doing what's good for us".

the_watcher11• 12 years ago

> Being blocked from air travel is indeed a violation of liberty.

Very much depends on how permissive your definition of liberty is. Not trying to be pedantic, this is actually a pretty big issue in constitutional law. It does seem to be a violation of due process, at the very least. An aggressive attorney may even allege a violation of the Equal Protection Clause in skirting the rebuttal of "there is a way to challenge it by appealing directly to the court," as well as the cases where citizens only discovered their inclusion by arriving at the airport.

This is a pretty important case in terms of defining the scope of federal agency's power (can agencies create regulations that burden various classes of people differently without providing notice or a way to contest your inclusion simply?) that could ripple out to non-law enforcement and homeland security agencies.

the_watcher11• 12 years ago

A follow up on due process, from Wikipedia: notified of the accusations, to confront the accuser, to obtain witnesses and to retain counsel.

While Wikipedia is not case law, having done a year in law school, I can attest that those pages are some of the most accurate out there. Definitely seems as though the notice requirement, in particular, is not being met by the government, as the punishment (not being able to fly) is being discovered prior to the accused even having the limited options presented to them. There's also good arguments that their right to counsel and trial by jury is being violated (although there are some larger loopholes for avoiding those - namely that trial by jury and some other 6th Amendment protections only being available in criminal trials, which I assume the government would dispute, having never formally filed charges, as well as the hazy catch-all the US has learned to use - classifying those who it wants to treat as criminals without having to obey constitutional and legal standards as enemy combatants. I doubt they would resort to this, however, as it would be inevitable that someone misclassified would get some media traction, and potentially force a judicial ruling on enemy combatant status, which is not in US interests).

zenciadam• 12 years ago

Freedom of movement is a human right. There is no real way to equivocate that without arguing in favour of a police state.

unreal376• 12 years ago

It's not pedantic. Liberty is definitely one of those rights that isn't 100% clear. The law is sometimes unfair/rough when it comes to balancing the rights of the individual against the rights of the state to protect against terrorism (real or perceived).

And then we go and revoke the passports of people who are behind on child support payments, which isn't even a crime, and suddenly restricting the ability of people to travel becomes something the government can use any time it wants without a court order with no clear reason why.

Definitely think this area of law can use some refinement to protect all interests more fairly.

jfoutz• 12 years ago

Great big IANAL here, but isn't due process something only the judicial branch can do? Do the police (i mean, the executive branch) get to strip liberties all willy nilly, and then you have to go to court to get those liberties restored?

AFAIK, it's not a judge that orders the addition to the no fly list, it's someone in the executive branch.

chris_wot8• 12 years ago

Actually, being blocked from international air travel is considered to be a deprivation of liberty.

shawn-butler• 12 years ago

This will probably not survive review.

The Department of State has always reserved the right to revoke/deny passports for all sorts of reasons that are not subject to administrative review.

Don't pay your taxes, no passport. Don't pay your child support, no passport. There have even been cases where passports have been revoked for people who have been remanded to mental institutions. Having had your passport revoked in the past is enough grounds to deny you getting one in the future all of which has passed muster at Supreme Court given State Dept acts with seeming explicit Congressional approval. [0]

You can in principle negotiate with the destination country for a visa and fly non-commercially. Can Google "Gilbert Chagoury" for example. He is wealthy patron of Bill Clinton from Nigeria who has been on No-Fly status for years but still jets around the US and internationally I believe on an UK passport on small planes.

Not saying it is just but that will probably be the legal basis.

This opinion is only a finding of due process. That DHS TRIP is not adequate. DHS will simply remedy that if it comes to it with some just as difficult process as it is getting a passport unrevoked by the State Dept (which is nearly impossible without political favor).

[0] http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vo...

smsm422• 12 years ago

What no-fly list has to do with passports? There are many people routinely flying in the US who don't have and never had US passports. E.g. all tourists, resident aliens, etc.

dandelany• 12 years ago

We're not talking about passports, we're talking about air travel.

As it stands today (correct me if I'm wrong), a US citizen could be on the no-fly list and be denied the right to board a flight from New York to California. Passports don't even enter into it in this case.

adventured3• 12 years ago

At a minimum challenging these systems is a good thing. Most were put into place with zero debate, no serious judicial challenges, and zero input from the general public (whom they have the greatest impact on).

Whether or not the no-fly list can really be stopped through a normal judicial means at this point, I think that's up for debate given how far the US Government has gone past concerning itself for the rule of law.

motbob• 12 years ago

The ruling only applies to U.S. citizens. As mentioned in the article, the vast majority of people on the list are non-citizens.

EDIT: Or perhaps it does apply to non-citizens when they are on U.S. soil. I'm not sure.

pc863• 12 years ago

The Constitution applies to anyone within the US, citizen or not.

dragonwriter• 12 years ago

More accurately, the U.S. Constitution applies to the US government, not to the people it interacts with. Some of its rules are preconditioned on dealings with certain classes of people, however, so citizenship is sometimes relevant to Constitutional considerations.

aarkling• 12 years ago

Yes in most cases it applies to all US residents. But many don't apply to non-residents who still live in the US. For Eg: international students.

INTPnerd• 12 years ago

"Brown wrote in her 65-page ruling." 65 pages! They need some good programmers to help them refactor that to be shorter, more expressive, more readable, and changeable using the DRY principal and such.

forgottenpass• 12 years ago

using the DRY principal and such

Repeating yourself is actually very important in court opinions. It shows that the court has considered all the case materials, claims, and legal precedent to clearly spell out what all of that means and how they factor into the findings of law.

They're very readable to people trained in the art, or the moderately-engaged passersby. Additionally, courts typically write with narrow margins and/or heavy line spacing.

chris_wot8• 12 years ago

It appears to be 38 pages. And actually it's very readable:

https://www.aclu.org/sites/default/files/assets/latif_v_hold...

Aqueous2• 12 years ago

I do not believe a judge currently has to authorize someone's placement on the No Fly List, which right away raises red flags. So the No Fly List is definitely unconstitutional as it is currently implemented, but I wonder if it would be replaced a constitutional implementation. For instance, if FBI, CIA, or NSA had to clear a probable cause legal hurdle in order to place someone on the list, and if a judge, rather than the TSA, had to approve their placement, then the program might be constitutional. The proceedings might have to be secret, so the no fly list would function like some NSA programs that I know folks here are so fond of (note: sarcasm) - but at least it would involve the judiciary rather than giving the executive branch carte blanche to prohibit anyone it deems suspect from travelling.

saraid216• 12 years ago

I'm pretty sure such a constitutional implementation already exists: namely, they can just revoke your passport, which I think has to go through due process.

chris_wot8• 12 years ago

It certainly does!

Aqueous2• 12 years ago

You don't need a passport to get on a domestic flight, though - so there's a blind spot for existing law.

webmaven• 12 years ago

Very welcome news. I hope it will have a positive impact on cases like http://www.papersplease.org/wp/category/freedom-to-travel/

tiedemann• 12 years ago

The US needs to rewrite some of that amendment stuff. It clearly sucks.

enraged_camel• 12 years ago

The title is a bit misleading. The judge did not rule that the No Fly List itself is unconstitutional. The government can still have such a list and put you on it. The only difference is that they now have to notify people as such and provide reasons as well as easy ways to appeal your inclusion.

I find this to be a minor victory at best. In my opinion, the elephant in the room is that there is a No Fly List in the first place. If someone is deemed so dangerous that they should not be allowed to get on an airplane, they should be in prison. After all, that's one reason why we have prisons: to keep dangerous people away from society. What can such people do on an airplane that they can't do on a bus or a train?

Federal judge rules U.S. no-fly list violates Constitution

Related Stories