Judge Declares Secretive No-Fly List Process Unconstitutional

Fighting for the right to squished into a giant flying sardine can.Credit: Pieter v Marion / photo on flickrEarlier this year a judge ordered the feds to correct a woman's improper inclusion on the no-fly list, which had made her whole life miserable for years (and it was all due to a clerical error). Today a federal district judge invoked that case in order to declare that the entire bureaucratic process for people to challenge their inclusion onto the no-fly list is unconstitutional and needs to be reformed.

The win goes to the American Civil Liberties Union (ACLU), who represented 13 Americans who were stuck on the no-fly list and were trying to get off. Some of them were military veterans, and some of them claimed that officials told them they could only get off the list by serving as government informants. The ACLU responds:

The judge ordered the government to create a new process that remedies these shortcomings, calling the current process "wholly ineffective" and a violation of the Fifth Amendment's guarantee of due process. The ruling also granted a key request in the lawsuit, ordering the government to tell the ACLU's clients why they are on the No Fly List and give them the opportunity to challenge their inclusion on the list before the judge.

"For years, in the name of national security the government has argued for blanket secrecy and judicial deference to its profoundly unfair No Fly List procedures, and those arguments have now been resoundingly rejected by the court," said ACLU National Security Project Director Hina Shamsi, one of the attorneys who argued the case.

"Our clients will finally get the due process to which they are entitled under the Constitution. This excellent decision also benefits other people wrongly stuck on the No Fly List, with the promise of a way out from a Kafkaesque bureaucracy causing them no end of grief and hardship. We hope this serves as a wake-up call for the government to fix its broken watchlist system, which has swept up so many innocent people."

The "Kafkaesque bureaucracy" is one in which people who are added to the no-fly list are not told why they're added. There is a process to petition to get off the list, but it's secretive. Those on the list submit information that they hope might get them off the list (because, again, they aren't told why they're on the list). If they're rejected, they still don't know why or what information might prove their innocence. The judge ruled this is a violation of due process and ordered the government to come up with a system where fliers can actually challenge their inclusion.

The previous case of Rahinah Ibraham was brought up because the feds defended the no-fly list removal process by claiming it had extensive quality controls to make sure nobody was erroneously placed on the list in the first place. And yet Ibraham was placed on the list in 2004 because an FBI agent literally checked the wrong box on a form. The mistake was only uncovered in 2013 because of her lawsuit. The judge pointed to this case as an example of problems with the current system. Furthermore, the judge notes the inability for people on the no-fly list to review and correct incorrect information is in violation of the legislation that gave the government the authority to create and implement the list.

The judge ordered that the Department of Justice must remedy the problems with lack of due process in the implementation of the no-fly list. Read the ruling here (pdf).

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  • ||

    "That is your receipt for your husband.

    Thank you.

    And this is my receipt for your receipt."

  • GILMORE||

    I saved my receipt from the T.R.I.P

    ("Traveler Redress Inquiry Program")

    its somewhere in storage. I actually asked for a second copy because i got coffee stains on the first one.

    It is a wonderful exercise in bureaucratese; particularly the non-explanation explanation that if in fact you were on the list and then removed that this is in no way any admission that you had been on a list or removed and that if there was a list (which there's not any admission of, or that there may in fact be multiple lists, neither of which you are necessarily being removed from) then you would not be removed from it (or the others) but that your status would have changed however there is no confirmation what your status is or isnt at this time.

    Also, isn't it cute that they call it "Trip"? cause you can't travel? How *do* you get a job in PR @ DHS, really? Because that must just be so much fun.

  • Geoff Nathan||

    I got one of those TRIP thingies once, because I talked my way off the 'selectee' list.

    Which they claimed I wasn't on. Or that it was the airline's fault. Several different airlines all got my name from some mysterious place.

    Haven't had that kind of problem for about eight years, but it was a pain for six months--I could fly, but they had to talk to TSA at the gate every time I flew, and I couldn't print out boarding passes at home.

  • Notorious G.K.C.||

    So does due process include a trial by jury?

    Ha ha, I have such a sense of humor.

  • ||

    How many divisions does the judge have?

    Seriously, the way federal agencies have been acting lately, from the ATF to the IRS to the BLM, I can't see them paying any attention to this ruling. "Sure, we fixed it, but it's secret. Fuck you that's why."

  • Paul.||

    Rooster: Who said you wuz in charge?

    Trumpy: Who's gonna tell me I'm not?

  • Kure'i||

    Yep. I expect this to be met with a perfunctory "investigation" that, if it goes anywhere, will lead to superficial, effectively meaningless "reforms."

    Then, the whole process will get started for round 2, and will repeat itself until everyone just gets tired of it and gives up.

  • David Wall||

    I know I risk unending mockery by repeating myself.

    But...

    Declare war against a specified enemy and then tell the people that until the threat is defeated we are going to have to do things we normally do not do--like spying, keeping secret no-fly lists, etc. keeping prisoners of war, etc. It is understood to be TEMPORARY to keep people safe until we get all the bad guys neutralized. After the war is over all these activities stop.

    But with these unending, non-declared war it allows the government to keep this stuff up until it becomes a part of our normal culture, and then liberty is done.

    Did I already mention altruist, undeclared wars are bad?

  • Paul.||

    Earlier this year a judge ordered the feds to correct a woman's improper inclusion on the no-fly list, which had made her whole life miserable for years (and it was all due to a clerical error).

    No it wasn't. The feds made that up. That was a way of diverting the issue of how and why the no-fly list exists, by merely saying, "Woops, paperwork error we found in 15 seconds that we refused to acknowledge for years, so it's all good. We'll be more careful next time, no-fly list policies and procedures press on!"

    One has to be pretty credulous to believe they "discovered" the clerical error in the 11th hour of a hard and long fought trial, while mysteriously putting her daughter on the list right before she flies in to testify... the whole 'clerical error' thing was complete bullshit.

  • Invisible Finger||

    I'd bet checking the wrong box IS a way to get on the no-fly list. There's just no way in hell they'd "discover" such a mistake.

    Of course, if some "agent" checked the wrong box on a fore, that means another clerk down the line reviewed the form for quality purposes, and then another clerk actually typed the data into the computer and then another clerk checked the database against the form.

    It's all about insulation. That's why they actually believe "there's nothing left to cut."

  • Robert||

    Meaning the truth is something even more embarrassing?!

  • Kure'i||

    Government employee checks the wrong box = clerical error.

    Immigrant checks the wrong box on a state ID application or I-9 = False claim of US Citizenship, which permanently bars that individual from getting a greencard or citizenship, with no possibility of a waiver.

  • Hyperion||

    There are 2 sets of laws in the USSA, one for the ruling class, one for the serfs. Just joking of course, there is 1 set of laws, which is so innumerable that no one even knows a fraction of them, and that doesn't apply to the ruling class, at all.

  • ||

    Woman = innocent.

    Duh

    Process repaired.

  • Sevo||

    "The judge ordered that the Department of Justice must remedy the problems with lack of due process in the implementation of the no-fly list."

    So he told them they should change some stuff sometime soon?
    I can see this'll be all fixed in not time at all!

  • iEagleHammer||

    So what are the actual chances that these no fly lists go away? I'll put it at 0.05%

  • PapayaSF||

    Honestly, I don't get the idea of expansive no-fly lists. Limited ones, perhaps: if a bearded guy with a lump on his forehead named Ayman al-Zawahiri tries to get on a plane, don't let him. (Or maybe you do, and the FBI meets him at his destination.) But for the rest, wouldn't it make more sense to just pull them aside for extra screening if they think they might be terrorists? Especially if 5-6 try to buy tickets for the same flight. But just a secret list with lots of names who can't even get on a plane never made much sense to me.

    Heck, if I had a bunch of names of suspected terrorists, I'd want them to fly, to find out where they were going, maybe bug their luggage, that sort of thing.

  • creech||

    That kind of sharp thinking, Papaya, is why you'll never qualify for any Federal, state or local government position.

  • PapayaSF||

    I wonder how much of the idiotic airport security crap is just to avoid the bad PR of the modern sin of "profiling."

    "Why don't we just give these people extra screening?"

    "No, they nearly all have Muslim names, so we'd be accused of profiling. Easier to just have a secret list and forbid them from flying."

  • GroundTruth||

    Small victories....

    12 years late, a few trillion dollars short, but hey, at least we're safe from turrists.

  • UnCivilServant||

    Yes, safe from tourists.

  • RishJoMo||

    Its about time the kangaroo courts got it right.

    www.WentAnon.tk

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