Court Sides With ACLU On Unconstitutionality Of The DHS's No-Fly List

from the prying-our-rights-out-of-the-govt's-cold,-undead-fingers dept

Some good news has arrived on the Homeland Security front (although the department in charge of securing the Homeland probably wouldn't agree). Last time we visited the infamous "No Fly List," a federal judge (Anna J. Brown) wasn't buying the government's arguments in favor of preserving the list's lack of transparency or redress options. The ACLU, arguing on behalf of 13 list members, pointed out that the system violates citizens' (there are more than 20,000 names on the list) right to due process.

As if being on the list and having no way to be removed wasn't enough of a problem, the government made it clear it believed air travel and international travel in any form were luxuries granted by the State. The government's argument was Marie Antoinette-esque in its dismissive simplicity: let them drive cars.

During deliberations, Judge Brown swiftly undercut the government's argument that air travel is nothing more than a "convenience."

"To call it 'convenience' is marginalizing their argument," Brown said. [She] said alternatives to flying are significantly more expensive. "It's hugely time-consuming, and who knows what impediments there are between the Port of Portland and other countries."
The government apparently failed to make any further inroads at impressing the judge over the past couple of months. The ACLU announced today that the federal court has found in its favor.
A federal court ruled late yesterday that constitutional rights are at stake when the government places Americans on the No Fly List, agreeing with the plaintiffs in a lawsuit filed by the American Civil Liberties Union. The suit challenges the process for attempting to get off the list as unfair, inadequate, and unconstitutional. The decision also asked the ACLU and the government to submit additional information about the No Fly List redress procedure in order to help the court decide the ultimate question of whether it satisfies the Fifth Amendment's guarantee of due process.
We'll likely be waiting quite some time for the government to get its input together, if other TSA-related input-gathering efforts are any indication. As it stands now, the so-called redress procedure offered by the DHS is a pointless waste of paper for everyone involved. Here's that procedure in all its glory.
Their only recourse is to file a request with the Department of Homeland Security's "Traveler Redress Inquiry Program," after which DHS responds with a letter that does not explain why they were denied boarding. The letter does not confirm or deny whether their names remain on the No Fly List, and does not indicate whether they can fly. The only way for a person to find out if his or her name was removed from the No Fly List is to buy a plane ticket, go to the airport, see if he or she can get on the flight – taking the risk of being denied boarding and marked as a suspected terrorist, and losing the cost of the airline ticket.
That's not due process. That's a form letter awaiting a name to insert between the placeholder brackets.

In her ruling, Judge Brown reiterated the her problems with the government's insistence that air travel is a "convenience."
"Although there are perhaps viable alternatives to flying for domestic travel within the continental United States such as traveling by car or train, the Court disagrees with Defendants’ contention that international air travel is a mere convenience in light of the realities of our modern world. Such an argument ignores the numerous reasons an individual may have for wanting or needing to travel overseas quickly such as for the birth of a child, the death of a loved one, a business opportunity, or a religious obligation… the Court concludes on this record that Plaintiffs have a constitutionally-protected liberty interest in traveling internationally by air, which is affected by being placed on the list."
This is good news for the 20,000 unwilling participants in the DHS's no-fly program. I would imagine the government will be appealing this decision as any changes to its (lack of) redress process will probably cause "grave damage to national security," especially as it will now require the DHS to divulge some sort of actual information as to why Person A is on the list.

More likely the real reason for this opacity is to prevent the public from recoiling in horror at the briefest peek into the crafting of War on Terror™ sausage -- a process that seems to involve running a variety of amendments through the grinder along with handfuls of tax dollars. This win is a small push back against that apparatus and stakes another one of ACLU's flags into a chunk civilly liberated territory.



Reader Comments (rss)

(Flattened / Threaded)

  1.  
    icon
    Sneeje (profile), Aug 29th, 2013 @ 1:40pm

    I have no proof of this, but...

    If you think the no-fly list is checked ONLY when you try to fly, I would suggest that you are wrong.

     

    reply to this | link to this | view in thread ]

  2.  
    identicon
    Anonymous Coward, Aug 29th, 2013 @ 1:50pm

    Government Blessings

    "the government made it clear it believed air travel and international travel in any form were luxuries granted by the State"

    How much longer will it be before the "Rights" that our Amendments afford us are just "luxuries" granted by the State?

    Wake up folks, if you support(ed) the existence/creation of DHS/Patriot Act then how can you reconcile what it has brought us with being American?

     

    reply to this | link to this | view in thread ]

  3.  
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    GeneralEmergency (profile), Aug 29th, 2013 @ 1:59pm

    As a Law Abiding American...

    .


    ...I am fed up with all this over-reaching secrecy in the name of "National Security" being misapplied to this cowardly "War on Terror".

    Real Men -know- and can -boldly name- their mortal enemies.

    Once openly named, Real Men -wade forth- and -destroy- those enemies first.

    To our everlasting shame, the ghosts of the "Greatest Generation" will eternally refer to us as the "Generation of Cowards".

    .

     

    reply to this | link to this | view in thread ]

  4.  
    identicon
    Rich, Aug 29th, 2013 @ 2:06pm

    Re: Government Blessings

    You are making the common error that your rights are just those enumerated in the Constitutional Amendments (the very rights the authors were reluctant to list any at all). The Constitution defines the limits of government, not the totality of our rights.

     

    reply to this | link to this | view in thread ]

  5.  
    identicon
    Anonymous Coward, Aug 29th, 2013 @ 2:17pm

    "no fly" is code for "we don't like you"

    It makes absolutely no sense to prevent people from flying based on who they are... it's really just a way to piss people off that the government doesn't like.

    What are they afraid of exactly? That these people are smuggling bombs inside their body cavities? As if that's something that only those 20k people are capable of?

    Otherwise, why can't they assure that these people are just as non-dangerous as any other traveler? I thought that was the whole point of slowing EVERY OTHER PERSON down with TSA.

     

    reply to this | link to this | view in thread ]

  6.  
    identicon
    Anonymous Coward, Aug 29th, 2013 @ 2:18pm

    Re: Re: Government Blessings

    You may have missed the point of my argument. You are correct the constitution was not intended to enumerate all of our rights, but it at the very least was intended to prevent the abuse of what are considered at the very least "basic rights". I was talking about that... considering the assault on the 2nd & 4th amendments and how far they have already proceeded, then again, I would ask the question... how much longer before even your basic rights "guaranteed" by our constitution are considered "Luxuries" granted by our government.

    I should have used the word "guaranteed" instead of "afford" to better clarify my argument.

     

    reply to this | link to this | view in thread ]

  7.  
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    Vidiot (profile), Aug 29th, 2013 @ 2:19pm

    Precedent?

    Wow... a judge who values "right to due process". This is the first positive news I've seen along these lines. In my dreams, this triggers a domino-like reaction... creates a precedent for all the other you're-not-allowed-to-know-why scenarios that hide behind the banner of preventing terrorism.

     

    reply to this | link to this | view in thread ]

  8.  
    icon
    kenichi tanaka (profile), Aug 29th, 2013 @ 2:20pm

    I just thought of something. Between the airlines and the TSA, they are actually colluding in a scam to defraud American citizens of their money.

    Take this for what it's worth: you buy an airline ticket, you get in line to get on your flight, the TSA denies you entry and you discover you're on the no-fly list. The airline then denies you a refund.

    So now, you not only were denied entry on an airline flight but now you can't even get a refund on your ticket because you were denied entry on the flight.

    SCAM, COLLUSION, PYRAMID SCHEME, CON-ARTIST, TSA, AIRLINE INDUSTRY

     

    reply to this | link to this | view in thread ]

  9.  
    identicon
    Digitari, Aug 29th, 2013 @ 2:31pm

    Re:

    This is the exact reason the Airline Industries ALLOW the TSA to operate, it's their "Kick-back"

     

    reply to this | link to this | view in thread ]

  10.  
    identicon
    Anonymous Coward, Aug 29th, 2013 @ 2:37pm

    The ruling is simple, yet solid. I doubt it will get overturned.

    The question is how do you force DHS for continuing to do this? I fear it may need a few other lawsuits to make them stop, or a new law forcing them to stop.

     

    reply to this | link to this | view in thread ]

  11.  
    identicon
    Anonymous Coward, Aug 29th, 2013 @ 2:59pm

    Re:

    "how do you force DHS for continuing to do this?"

    Remember, when officials go against an established ruling, they lose qualified immunity and are PERSONALLY liable for violations. How long do you think any particular official will continue doing this when it's their personal money on the line?

     

    reply to this | link to this | view in thread ]

  12.  
    identicon
    Anonymous Coward, Aug 29th, 2013 @ 3:05pm

    Re:

    What percentage of the ticket fees of refused passengers goes back to the TSA? I'd be willing to bet it's at least 50%. The kickback to TSA is what keeps the list active. They have no incentive otherwise.

     

    reply to this | link to this | view in thread ]

  13.  
    identicon
    Anonymous Coward, Aug 29th, 2013 @ 3:09pm

    Don't Hold Your Breath

    As usual, the government is appealing this decision. The back and forth will probably take years. You might see a final decision by 2020, maybe. More lawsuits, please.

     

    reply to this | link to this | view in thread ]

  14.  
    identicon
    Anonymous, Aug 29th, 2013 @ 3:37pm

    Re: As a Law Abiding American...

    Never did know what made them so friggin' great.

     

    reply to this | link to this | view in thread ]

  15.  
    icon
    lucidrenegade (profile), Aug 29th, 2013 @ 3:39pm

    Re:

    Like anyone else. Hit them hard in the pocketbook.

     

    reply to this | link to this | view in thread ]

  16.  
    icon
    Namel3ss (profile), Aug 29th, 2013 @ 4:11pm

    Any takers on this bet?

    I bet 0bama, Holder, et al basically just ignore this ruling just like they do with pretty much everything else they don't like/disagree with/whatever.

    Any takers?

     

    reply to this | link to this | view in thread ]

  17.  
    icon
    GeneralEmergency (profile), Aug 29th, 2013 @ 4:44pm

    Re: Re: As a Law Abiding American...

    .

    They stood up to the forces of German Nazism, Japanese Imperialism and Italian Fascist tyranny and saved the world from 1000 years of darkness.

    They stood as men, named the enemy who had named us as the enemy first, then formed armies that proceeded to kill that enemy and to break all their stuff.

    War is an ugly, regrettable business, but it is always preferable to allowing the cowards amongst us to turn us into tyrannical copies of the very enemies we abhor.

    .

     

    reply to this | link to this | view in thread ]

  18.  
    icon
    Dirkmaster (profile), Aug 29th, 2013 @ 5:12pm

    Now wait just a cottin' pickin' minute...

    "the government made it clear it believed air travel and international travel in any form were luxuries granted by the State"

    There is no such thing. The State has nothing to give, it has NO inherent powers or ownership to withhold. It has no power at all except what WE THE PEOPLE give to it. So the State is saying the a privilege that we gave them they can keep from us? How did they even think this argument would work?

     

    reply to this | link to this | view in thread ]

  19.  
    icon
    JMT (profile), Aug 29th, 2013 @ 5:47pm

    Re: "no fly" is code for "we don't like you"

    Too dangerous to fly but not dangerous enough to arrest. It's a logical paradox only the government could come up with and defend.

     

    reply to this | link to this | view in thread ]

  20.  
    icon
    Uriel-238 (profile), Aug 29th, 2013 @ 5:59pm

    Planes will fall from the sky, I tells you!

    FALL FROM THE SKY!

     

    reply to this | link to this | view in thread ]

  21.  
    identicon
    Pixelation, Aug 29th, 2013 @ 10:02pm

    Judge Brown is obviously a terrorist. Unless the NSA is is an over reaching, over aggressive branch of the government.

    At least there is one judge left that isn't a Obama crony.

     

    reply to this | link to this | view in thread ]

  22.  
    icon
    Bergman (profile), Aug 30th, 2013 @ 12:34am

    Re:

    Simple. Put the DHS employee roster on the no-fly list and make it illegal to take someone off it without following the proper procedures which must (by legislated mandate) be transparent, simple and easily understood.

    I bet it would take DHS less than 48 hours to "fix" the problems...

     

    reply to this | link to this | view in thread ]

  23.  
    icon
    Bergman (profile), Aug 30th, 2013 @ 12:35am

    Re: Planes will fall from the sky, I tells you!

    No, it's balloons that fall from the sky when deprived of hot air, get it right.

     

    reply to this | link to this | view in thread ]

  24.  
    icon
    Ninja (profile), Aug 30th, 2013 @ 4:11am

    At the very last the list should be public so you won't make these people spend money on tickets just to be stopped in the airport. But all this terrorism circus has caused many, many innocents to suffer the consequences. There's a recent case here in Brazil where Qatar Airlines didn't allow a student to board to Bali where she would participate in an international congress because her father made a joke on terrorism (he said something like "Thank God they didn't think you were a terrorist!"). Not only this student lost her opportunity but now she has to pay her debt of $3000 because while the University is public and technically the students don't spend a dime she didn't actually participate making a reimbursement mandatory by the University rules. But that's not all, her family does not have substantial incomes and this kind of debt will take years to be paid. Since we are talking about Brazil and not the US the civil aviation agency is looking into the matter to check if there was no abuse but what surprised me is that even though we have no issues with terrorism this idea is already input into the agency's heads which is a shame - and I think we can thank the US for that as we have to comply with their paranoia to have flights to the US.

    Anyway, further reading:

    http://www1.folha.uol.com.br/cotidiano/2013/08/1331919-apos-piada-brasileira-e-barrada-e m-voo-para-bali.shtml

     

    reply to this | link to this | view in thread ]

  25.  
    identicon
    StaffSergeantSlinkySlim, Aug 30th, 2013 @ 5:56am

    Re: As a Law Abiding American...

    .. reporting for duty, Sir.

     

    reply to this | link to this | view in thread ]

  26.  
    identicon
    IP Lawyer, Aug 30th, 2013 @ 9:29am

    Tim, misleading title.

    The court did *not* say that the no-fly list was unconstitutional, nor did it say the redress procedures were unconstitutional. It said that constitutional rights were AT STAKE. It then further went on to request additional information to determine if, in fact, this policy was unconstitutional. Here is hoping the court continues down this path.

     

    reply to this | link to this | view in thread ]

  27.  
    icon
    Vincent Clement (profile), Aug 30th, 2013 @ 12:04pm

    Re:

    You're just figuring this out now? Do you honestly believe that Global Entry is about keeping the US secure or about generating revenue?

     

    reply to this | link to this | view in thread ]

  28.  
    identicon
    teka, Aug 30th, 2013 @ 10:18pm

    Re: Now wait just a cottin' pickin' minute...

    This viewpoint is backed up by all those people with guns who will appear when you challenge their ability to turn a right into a denied privilege.

     

    reply to this | link to this | view in thread ]

  29.  
    identicon
    Anonymous, Aug 31st, 2013 @ 6:26pm

    Re: Re: Re: As a Law Abiding American...

    "Wars not make one great." -Yoda

    (Of course, the irony in that comment is that it comes from a movie in the "Star WARS" series.)

     

    reply to this | link to this | view in thread ]

  30.  
    identicon
    Anonymous, Aug 31st, 2013 @ 6:32pm

    Re: Re: Planes will fall from the sky, I tells you!

    And then crash in a New Mexican rancher's field. Weird how the government could mistake a balloon for a saucer, innit?

     

    reply to this | link to this | view in thread ]

  31.  
    identicon
    Anonymous, Aug 31st, 2013 @ 6:35pm

    Re: Re: Re: Planes will fall from the sky, I tells you!

    It's just a balloon, people. Rest assured, your government would never lie to you or cover anything up. Nothing to see here, folks, move along...

     

    reply to this | link to this | view in thread ]

  32.  
    icon
    Sheogorath (profile), Sep 2nd, 2013 @ 7:41pm

    Re: Re: Planes will fall from the sky, I tells you!

    Or if they're punctured. Who wants to stick a pin in a helium-filled politician?

     

    reply to this | link to this | view in thread ]


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