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.

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Comments on “Court Sides With ACLU On Unconstitutionality Of The DHS's No-Fly List”

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Anonymous Coward says:

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?

Anonymous Coward says:

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.

GeneralEmergency (profile) says:

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”.


GeneralEmergency (profile) says:

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.


Anonymous Coward says:

"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.

kenichi tanaka (profile) says:

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.


Dirkmaster (profile) says:

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?

Ninja (profile) says:

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:

IP Lawyer says:

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.

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