Judge Rules No-Fly List Doesn't Fly Without Due Process

Surprised the feds didn't argue it's because their bodies contained more than 8 ounces of liquid.Credit: matt.hintsa / Foter / CC BY-NC-NDIn June, J.D. Tuccille took note of a federal judge who seemed quite skeptical that the federal government's opaque, bureaucratic no-fly list was operating just fine and people don't actually have a fundamental right to fly anyway. That was the argument the feds used in response to a lawsuit by the ACLU, representing 13 people on the no-fly list who didn't know why they were on the list and couldn't get off it.

This week that same judge ruled that those who want to fly have a constitutionally protected right to due process. From the Associated Press:

U.S. District Judge Anna J. Brown of Portland, in an opinion released late Wednesday, rejected the government's assertion that people on the no-fly list can travel by other means, and that being on the list does not deprive them of their liberty. She said it ignores "the realities of our modern world."

"This decision is a critically important step towards vindicating the due process rights of Americans on the no-fly list," said Nusrat Choudhury, the ACLU lawyer representing the plaintiffs. "For the first time, a federal court has recognized that when the government bans Americans from flying and smears them as suspected terrorists, it deprives them of constitutionally protected liberties, and they must have a fair process to clear their names."

Brown's decision, however, is only a partial one. She asked the government for more information about its redress procedure to help her determine whether it satisfied due process requirements for the plaintiffs.

"We're very confident that the court, when it gets this information, will rule in our favor," Choudhury said. "And that's because the government has a policy of not providing any explanation to people who are on the no-fly list about why they were put on the list."

The redress procedure involves filling out an online form with the Department of Homeland Security, crossing your fingers, and possibly burying a turnip under an ash tree during a new moon or perhaps sacrificing a goat. There's a possibility of a judicial review should the passenger be rejected again, but not one where any evidence is presented that the passenger can actually respond to or even grasp why he or she is being denied the ability to fly.

Steven Chapman wrote about the lawsuit in April, noting, "The ACLU is not dreaming big here. It doesn't ask that the government take these individuals off the list. It doesn't insist that they be exempt from monitoring. The only request is that they be told why they are deemed so dangerous and have the chance to show why they really aren't."

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  • ||

    I suppose the question now is why does Judge Brown hate children?

  • Aresen||

    It will be interesting to see what the Nazgûl have to say about this.

    Of course, this judge has totally blown her chances of ever getting an appointment to a higher court.

  • Live Free or Diet||

    It will be interesting to see what the Nazgûl have to say about this.

    Probably something to the effect of "Shire! Areson!"

  • Live Free or Diet||

    Sorry. Can't type. "Aresen!"

  • Almanian!||

    Pfft - this is so 10 years ago. It's settled law. We need to get moving to take away some OTHER rights, privileges and immunities! CHOP CHOP!

  • GPZsug||

    She said it ignores "the realities of our modern world."

    In other words, judge Brown doesn't give a shit about rights. She just thinks forbidding air travel overly inconveniences people in 2013.

  • R C Dean||

    Quite the contrary. It means she rejects the "implied consent" theory under which our right to be free of unreasonable search and seizure is disregarded in airports.

  • Agammamon||

    And I don't know why she would - we give 'implied consent' for government intelligence gathering of our phone, email, and internet records. We gave 'implied consent' to turn over our financial records when we opened a bank account.

    Third part doctrine trumps the fourth amendment.

  • GPZsug||

    The 4th amendment and implied consent have nothing to do with modernity. Even if flying was the objectively worst form of travel, the no-fly list is unethical and unconstitutional. Using the line "realities of our modern world" suggests she doesn't understand that.

  • ||

    Considering the state of the federal government, any federale that makes good decisions is an asset to be treasured, whether or not those decisions are made for the right reasons.

  • CE||

    It's a 9th Amendment issue, not a 4th. The feds are prohibited from infringing ALL rights they are not specifically authorized to infringe, by their own rules.

  • Libertymike||

    Actually, logically, the 9th was designed to be a veto upon any legislation or action which in any way inhibited an individual's exercise of liberty.

    The BOR were added after Article I, so, any conflict between an enumerated power and an individual's liberty must be resolved by the former giving way to the latter.

  • bassjoe||

    Eh, the Supreme Court has made due process exceptions for "special" circumstances and has a marvelous multi-factor test to determine when something is considered "special". The judge was merely following precedent and had to come up with reasons as to why flying was not special.

    Hopefully, this gets appealed to the Supreme Court and the entire "there are special exceptions to due process" nonsense gets overturned or sharply curtailed. Until then, you can't really fault a district judge for following the tests.

  • LarryA||

    In other words, judge Brown doesn't give a shit about rights. She just thinks forbidding air travel overly inconveniences people in 2013.

    I think she's saying that air travel is a lot more essential today than it was in, say, 1930.

  • Warrren||

    Liberty is the sound of terrorists winning.

  • R C Dean||

    rejected the government's assertion that people on the no-fly list can travel by other means,

    Doesn't this blow up the whole fantasy about how the airport searches, etc., don't have to meet Constitutional standards? Aren't those justified on the basis that you give consent because you have alternatives if you don't want to get searched?

  • ||

    It certainly seems to chip away at it.

  • ||

    What I want to know is if these people are so dangerous why is it safe to have them walking around in the wild and not in jail?

    What is so very special about airplane?

    Shouldn't there also be a no movie theater list and a no mall list?

    The reasoning behind putting some people on no fly lists looks more and more politically motivated.

    If they are not dangerous enough to imprison then what other reason could the government have for banning them from flights?

  • CE||

    Can we put Ben Affleck on the no movie theater list? (Just kidding... I think he'll make a great Batman.)

  • ||

    I think he'll be good, but not great. The best choice for Batman was clearly

    M A T T
    D A M O N !

  • SomeGuy||

    I think colin farrel would have been a decent batman.

    Also mishra (guy from supernatural) or whatever his name is would have been an awesome max payne.

  • Paul.||

    Shouldn't there also be a no movie theater list and a no mall list?

    There are other outlets to shop in, you have no constitutionally protected right to enter a shopping mall.

  • Agammamon||

    Not to mention that that rational destroy freedom from unwarranted searches and seizures *anywhere* outside of you home - all transportation methods have alternatives.

    If I'm walking down the street you can search me because I *could have* taken a car. You can search my car because I *could have* taken a bicycle, ad nauseam.

  • DenverJay||

    Its just because airplanes are such high value targets for terrorists. The TSA is already starting to target trains and buses, so what are the alternatives really? Walking? Horses, since that's the tech available when the BORs was passed?

  • SomeGuy||

    nah they got codes in towns that prohibit animals in the streets so that is out. Or if your horse poops it is littering so you are just fucked

  • Fist of Etiquette||

    Brown's decision, however, is only a partial one.

    Of course it is.

  • Paul.||

    those who want to fly have a constitutionally protected right to due process

    Administration: Due process. We done did process them, and put them on the no-fly list. Respect.

  • Agammamon||

    'Course I have a right to due process when I get a DUI - just that right involves me going in front of a judge without a jury.

  • Paul.||

    those who want to fly have a constitutionally protected right to due process

    I'm not sure this is the correct argument. Bear with me here, fellow libertards...

    The government asserts you don't have a 'right' to fly, and that other methods of transportation are available. This is technically true.

    However, flying is a contract I make between me and a given carrier. The government has inserted itself in that relationship and, at time of boarding (not at time of ticket purchase) can deny my right to fly. That's the problem. If a given carrier wouldn't sell me a ticket (no shirt, no shoes, no service) in a theoretical perspective, I might not have a problem with it. But that's not what's going on. The carrier is selling me the ticket, then an agent of the government stepped between me and the boarding gate and has barred my passage. That's what's unconstitutional.

  • bassjoe||

    Interesting theory. But it's not complete. This isn't a contract issue. In fact, be thankful it is not just a contract issue; if it was, you'd be screwed.

    The airlines operate at the pleasure of the federal government. As such, the ticket contract contains provisions that allow it to be subverted by the will of the government agent, and you specifically subject yourself to federal laws and regulations, waiving your right to do a myriad of things you would otherwise be allowed to do (smoking, carrying weapons, etc.).

    The constitutional problem is that the federal government is required to provide you with due process before punishing you. Though your ticket contract can be subverted by the will of the government, the government's will cannot be arbitrary.

  • Paul.||

    The constitutional problem is that the federal government is required to provide you with due process before punishing you.

    But that's kind of my point. Kind of... I think. I hear what you're saying about the complexities of waiving rights once you buy the ticket. But that's because the feds already view 'flying' as something special.

    What I have a problem with is that if you accept that 'realities of the modern world' are good enough to either justify (or not justify) the government's argument, then "realities of the modern world" can shape any constitutional argument. And we libertarians kind of like our government of limited and enumerated powers, realities of the modern world be damned.

    I admit I'm still working this argument out in my head... but it just seems like flying isn't special. It's that the government has no right to stand between me and my destination... be it by car, by rail, bike or on foot... and declare that I simply can't go because I'm on a list.

    It's the "realities of the modern world" that are giving the government the moral fortitude to maintain these programs. Terrorists like to blow up stuff with or on planes. Therefore, no-fly lists.

  • bassjoe||

    It's that the government has no right to stand between me and my destination... be it by car, by rail, bike or on foot... and declare that I simply can't go because I'm on a list.
    -----
    Exactly why it isn't a contract issue.

    But I think we're arguing about pure semantics at this point. What the government has been doing with the no-fly list is wrong. The fact that they've been able to get away with it so far is because of a stupid exception to the Constitution carved out by statists on the Supreme Court gods-know-when. This line of judicial "thought" -- or a branch to it -- is also responsible for the third-party use exception to due process, which Google "Do No Evil" has gleefully cited to in a class action alleging all sorts of violations of users' privacy.

    But, hey, remember kids: we live in the freest country in the history of civilization...

  • Paul.||

    Tread on me? Tread on you!

  • Robert||

    But they've never admitted this to be a regul'n on airlines. AFAIK no airline has ever carried someone and been deemed to have broken some regul'n by virtue of the person's having been at the time on a no-fly list.

    Of course the person so named has to have some legal recourse, just as if FDA or CPSC made pronouncements that a certain product was a piece of shit and that although it was still legal to sell, nobody should buy it.

  • DenverJay||

    But isn't it just the big commercial airlines? If a private plane pilot wants to give you a ride, he can, right? So what size is the cut-off? A 3 person plane? 6? Or is it that they just aren't screened by the TSA on small flights but they are still technically banned?

  • Robert||

    AFAICT, they're not banned at all. The "no-fly" is an advisory that's been broadcast to the airlines since before 2001. Airlines have gone far out of their way to avoid even flying someone on the USA's list over part of the USA, but there's no penalty if they do so.

  • BladeDoc||

    They tried to get this applied to private planes that seat 6 or more but there was a HUGE backlash which succeeded in preventing it (because mostly they couldn't figure out a way to do it without giving everyone access to the no fly list).

  • ||

    The only request is that they be told why they are deemed so dangerous...

    Why do you think the Federal government is fighting this so hard? Because they don't even know why some people are on the list, and it would be embarrassing as hell for that fact to come out.

  • Paul.||

    I don't think so. I think it's about power. If they allow people to question why they're on the no-fly list, then anyone can question their status on the no-fly list, then the government would be flooded with appeals and due-process... process, and then the no-fly list becomes useless-- or worse, too much trouble to manage.

    The government has taken the position... literally taken the position... if it's questionable, put it on the list. For the list to work the way the government believes it works, that's the only way to have it.

  • Agammamon||

    "This week that same judge ruled that those who want to fly have a constitutionally protected right to due process."

    But they *got* due process - someone (you don't need to know who - national security) trustworthy (vetted by an approved government security vendor, we can't tell you which one - national security) examined the evidence (which you can't see since it would compromise intelligence gathering procedures and put lives at risk - national security) and decided these people were too dangerous to be allowed to fly but not dangerous enough to be arrested (see, strict scrutiny - the law is justified by a compelling government interest (national security), is narrowly tailored to achieve that interest (national security), and is the least restrictive means for achieving that interest (national security)).

    All above board and legal since someone told someone in congress some things about the law and some of those things were actually true so congress knows and approves.

  • Robert||

    What legal effect does the no-fly list have? AFAIK it's not illegal for the people on the list to fly, and not illegal for airlines to carry them. It's supposed to be purely advisory.

  • Geoff Nathan||

    I was, for a brief period of time in around 2005 on the 'Selectee' list. This meant that I couldn't print out a boarding pass ahead of time, and had to be reinterviewed by the gate agent at the gate, who called the TSA and read them the details on my drivers' license.
    I filed a complaint with the TSA (there's a complaint form on their website.)
    It stopped, and about three months later I got a letter from the TSA denying that I had ever been on any list. They blamed the airline.
    But, of course, it was several different airlines, so they must have got the list from somewhere.
    Gives me the warm fuzzies to know that my fellow citizens were at least briefly, safe from my potential predatory nature...

  • Copernicus||

    Can someone explain to me what the "no-fly" list is supposed to accomplish?

    Is it supposes to stop someone from highjacking or blowing up a plane?

    I don't care if OBL shows up at the airport, he isn't going to be able to highjack or blow up the plane.

    Is it supposed to inconvenience someone into having to take a train/bus/car/ship?

    Is it supposed to punish someone who is disliked by someone else?

    It is all idiotic.
    Not to mention the incredibly dubious methodology of compiling the list.

    " Kurtz: Are my methods unsound?

    Willard: I don't see any method at all, sir. "

  • Enjoy Every Sandwich||

    Arguing over whether one has a "right" to fly seems to me to miss at least part of the issue. I wonder: which part of the Constitution (other than FYTW) gives the fedgov the rightful authority to interfere with anybody's travel?

    No doubt the statist answer is "of course, the magical super-elastic cover-all Commerce Clause, bitchez!"

  • Jake W||

    Government impedance to free travel WOT?

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