Will This Class-Action Suit Fly?

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The ACLU files a class-action lawsuit against the government's "no-fly" lists. From their press release:

A member of the military, a retired Presbyterian minister and a college student are among seven U.S. citizens who have joined the first nationwide, class-action challenge to the government's ?No-Fly? list filed today by the American Civil Liberties Union.

?This case is about innocent people who found out that their government considers them potential terrorists,? said Reginald T. Shuford, an ACLU senior staff attorney who is lead counsel in the case. ?For our clients and thousands like them, getting on a plane means repeated delays and the stigma of being singled out as a security threat in front of their family, their fellow passengers and the flight crew.?
….
Named as defendants in the lawsuit are Department of Homeland Security Secretary Tom Ridge and Transportation Security Administration Director David M. Stone and their respective agencies.

The No-Fly list is compiled by the TSA and distributed to all airlines with instructions to stop or conduct extra searches of people suspected of being threats to aviation. Many innocent travelers who pose no safety risk whatsoever are stopped and searched repeatedly.

The ACLU is asking the court to declare that the No-Fly list violates airline passengers' Constitutional rights to freedom from unreasonable search and seizure and to due process of law under the Fourth and Fifth Amendments. The ACLU is also asking the TSA to develop satisfactory procedures that will allow innocent people to fly without being treated as potential terrorists and subjected to humiliation and delays.

I can imagine the same line of thought that Judge Susan Illston used against John Gilmore's lawsuit challenging I.D. requirements to get on airplanes might be used to squash this suit as well, but good luck, ACLU.

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  1. I don’t understand why the *government* isn’t the one bringing this suit. I mean, if the goal here is to make Americans safer and reduce the number of terrorists in the world, then wouldn’t the government *want* to stop wasting its time harassing the same innocent David Nelson over and over and over again?

    I must learn to stop expecting logic from these people.

  2. I don’t know about the comparison between this and the Gilmore business…

    There’s a big difference between:

    1. Asking someone for an I.D. at the gate to board plane – something that’s incidental to making sure he is in fact the person that’s supposed to get ON the plane and

    and

    2. Denying someone access to air travel based on their appearance on a list – something that is planned (not incidental) based on criteria that are maybe suspect and even capricious.

    i.e. You won’t confirm you are who you say you are by the only means available to us to verify so you can’t get on the plane

    VS.

    John Ashcroft doesn’t like your politics so you can’t get on the plane.

    I’m not addressing the ruling on the Gilmore case but rather that I feel the arguments are not the same. Similar sure, but there are distinct differences both in intent and degree of severity.

  3. To add:

    Not only does John Ashcroft not like your politics but we’re not sure how you got on this list in the first place…but it must have been for a good reason (those folks up the line really know their stuff) so by God you’re on the list and you’re staying on the list. Now what was your name again?

  4. So, just for the record, you’re all in agreement that if the government knows for a fact that Sheik Abdul al-Fuckface has called for all devout Moslems to blow up American planes, the government may not inform airlines of this fact, nor may airlines subject al-Fuckface to additional searches, or bar him from their planes. Come on aboard, Mr. al-Fuckface; no, that’s ok, we don’t need to search your carry-on luggage. You’re just another person whose politics “John Ashcroft doesn’t like” — and there’s nothing wrong with that at all, now is there.

    What needs to happen here is a change in the policy, not an abolition of it. There should be a clear process for challenging the inclusion of your name on a watch/ban list — but the necessity of *having* a watch/ban list is indisputable. Subjecting all passengers to the same level of scrutiny is neither Constitutionally required nor an intelligent way to conduct a search. Singling out likely terrorists is a smart move.

  5. Yes, Dan, we’re all in agreement that Sheik Abdul al-Fuckface should blow up airplanes. Obviously. Thank you for so eloquently summarizing the civil libertarian position.

    You know, I get criticism when I pre-emptively post and mock idiotic screeds like Dan’s, so I specifically resisted the temptation to predict that somebody would post this. God knows I was tempted. But now I can just say “See, I knew this would happen!”

    Let’s face it, this forum is a strange place…

  6. Dan, I don’t what the hell you mean by that second paragraph but you are, of course, exactly right in the first para. That is exactly my position and the position of all real libertarians. Thanks for clarifying.

  7. Thoreau: you are a faster typist than me.

  8. Interesting how public perceptions shift.

    MadPad is correct about the differences, but his comments illustrate how quickly we accept changes that become the norm (and the new bar). It just hasn’t been that long ago that the norm meant that if one had an airline ticket in one’s hand that was all that was required to board an airplane.

    Oh another note, I’m still waiting for those paragons of virtue over at ACLU to file a class action lawsuit against the IRS for failure to provide probable cause or any other legal niceties before seizing property or demanding records.

    No can do I’m told.

    Wish in one hand, ACLU in the other and see which hand fills up faster.

  9. The government is intend on saving the commercial airline industry.

    Will the ACLU be liable if a “no fly” person flies
    and then commits a harmful act, I would wish,
    but it will be the insurance companies and airlines
    that the trial attorney will be suing,
    and maybe the federal government.

    To be sued for acting, or not acting to be secure.

  10. Wrong thing about a no-fly list is that you a law abiding citizen has no way of knowing if your name ended up there by some mistake. Once they stop you at the airport gate, and you complain loudly, you still miss the flight and it takes months to remove your name from such a list. “freedom of information act” doesn’t help me in finding out if I am on any black list maintained by my Government. You don’t believe?
    Then read my personal story in the next post.
    Yes, I agree that a list would be good idea but there has to be verification, checks and immediate correction with an apology.
    Peace.

  11. “Many innocent travelers who pose no safety risk whatsoever are stopped and searched repeatedly.”

    The ACLU needs more statisticians and fewer lawyers.

    Bayes rule says that if you have a large population (like millions of airline passengers) and very few targets (like a literal handful of terrorist) then even a highly accurate system will produce far more false positives than true ones.

    Any real world system will flag far more innocent people than it will the potentially guilty. It is completely unavoidable given the large number of people involved.

  12. My personal story of me on a unknown list! Year 1995. Long before 9/11.
    I travel to foreign countries for short trips for business and conference attendance. On return from my travel, going through customs I was stopped and taken aside for more thorough questioning and search of my luggage. This happened not on a random basis but four times in a row! The last time I flew from Tokyo to Seattle. I expected that I will be pulled aside once I go through past the immigration and passport control window. I was already very tense. The customs agent takes my signed “customs declaration” form on which the Passport agent has made some ink mark which I think is the signal to the customs agent that this guy is on “The List”. This is my speculation. And sure enough! I am asked to step aside and accompany the agent to a more secluded area for thorough questioning and luggage search. I am about to blow my top but I know better. I decide to confront him AFTER he has cleared me! He finishes his search and clears me to go. And now I confront him. I wanted to know why he stopped me? I told him this in NOT RANDOM. I really want to know the reason. He said he can’t tell me why I was stopped. Now I was getting angry and demanded that I see someone with the “authority” who can answer my question. He goes away and brings his superior. He gives the same answer, we can’t tell you why you were stopped! I told him I am not going to accept that answer. We have a long discussion with no end in sight. He then asks me to wait and goes away and brings some printed information forms. One titled “Department of Treasury” with several heading starting with –
    “Who gives you the right (to search)?” The answer is a list of US Code Sections ……
    Next section – “Why Me?”. The answer “…to ensure that your declartion and statements were correct. The Officer certainly was not accusing you of any wrongdoing.”
    The next printed section. “What good does it do?”
    Answer. To help protect. 1. You and your family from narcotics and dangerous drugs.” and two other mundane reasons. So OK. Tokyo-Seattle is the worlds’s hottest drug pipeline! For crying out loud – protecting me and my family by trempling on my rights? No thanks. And the form went on and on. At the end it gives an address to complain. In addition he gave me a phone number of US Customs Seattle to lodge a complaint. I called them from the Airport and he asked me to write him a detailed letter. Which I promptly did. The main complaint was – What was the link between immigration (under Dept of Justice) and Customs (under Dept. of Treasury)as I had suspected that the immigration officer was putting a mark on the customs declration as signal to the customs officer. And second point was that if my name was on some black list I want to know and I want it removed! I did receive a reply with no satisfactory answer. More about protecting me and others from drugs! And more printed forms explaining e.g. “Since the adoption of the Constitution, the Congress and the courts have recognized the need to provide Customs Officers with broad search, seizure and arrest authorities to secure America’s borders from smugglers.”
    To make this long but painful story short, since the exchange of letters between me and US Customs, I have not been stopped again ever for extra search. So my name must have been removed from the black list.
    Moral of the Story. Any lists maintained by Government are error prone and steps on too many innocent citizen’s rights.
    Peace.

  13. Dan,

    I’ve heard plenty of good ol’ boys argue that if the cops “know for a fact” that somebody is guilty, they shouldn’t bother with a trial.

    So how are we supposed to determine what the goverment does or does not “know for a fact”? As far as I can tell, every crooked pig who ever planted a lid of pot in somebody’s trunk “knew he was guilty,” and just thought all that due process shit was too much effort to waste on somebody who was “obviously guilty.”

    If we can trust the government to “know” who’s guilty and who’s not, without having the burden of proving it to the rest of us beyond a reasonable doubt, why even bother with trials?

  14. C’mon Kev, everyone knows cops are never corrupt.

    My friend, a police dispatcher, got pulled over after coming down the Grapevine. She was upset that the police officer never checked her plate or called in to see that she worked for the PD. I chuckled to myself as she bitched about it. Of course, I love tormenting her with statements like “I’ll take a guy with a joint over an H2 going 80. At least the only thing the guy with the joint will tear through is a bag of Cheetos.”

    Regarding this subject, I would prefer they x-ray and/or chem analyze bags going through than limiting access of people. Sheik Abdul al-Fuckface may want to kill all Americans, but if all he has on the plane is some dirty laundry and an iPod, he ain’t killing shit.

  15. Thank you for so eloquently summarizing the civil libertarian position

    Thanks for claiming to be a civil libertarian; it was the funniest thing I’ve heard all week. But then, this is Hit&Run, where anyone who likes to get high and bitch about John Ashcroft can claim to be a libertarian.

    The civil libertarian position is that any reduction in civil liberties must happen if and only if that reduction is clearly necessary to prevent an even *greater* reduction in civil liberties, such as death and dismemberment. Given that each person boarding a plane has a good chance, if determined, of murdering everyone else on that plane, a large degree of caution is called for.

    If you don’t like it, buy your own plane, and fly yourself. You don’t have a right to fly on someone else’s plane, and I don’t find it likely that the airlines would start pushing and shoving to be first in line to claim the title of “Airline That Spends The Least Effort Screening For Terrorists”, even if the government’s watch list was voluntary instead of mandatory.

  16. I think folks like Dan are missing the point. Nobody here seems to be complaining about searching dangerous-looking people, and I don’t think anybody would complain if the people on the No-Fly list were pulled out and searched once or even twice. A little inconvenience is to be expected, realistically.

    The problem is that even when people are PROVEN innocent they are still given the same treatment. Once you’re on The List you apparently never get off (D’s story was PRE- 9-11, remember). Seriously, Dan and the rest of you guys–don’t you think the government should have any accountability at all? Or do you buy into the apparently-popular idea that as long as the government is not actually killing or torturing people, there’s no reason to complain?

  17. If we can trust the government to “know” who’s guilty and who’s not [blah blah blah]

    Like I said, there should be a process for challenging the names on the list.

    why even bother with trials?

    Because the right to a trial is guaranteed by the Constitution. The right to travel at hundreds of miles an hour in a large metal object packed with explosive fuel isn’t.

    Of course, a better way to solve this would be to make the airlines 100% liable for the misuse of their aircraft, and free them from the numerous restrictions on their own rights (such as the right to refuse service). Then you’d see some *serious* security, and some *serious* watch-lists… and some serious whining about the supposed “rights” of would-be passengers. 🙂

  18. Hey, I think Dan’s onto something here. While the Constitution says I can’t have my political enemies thrown in jail without a trial (blast those founding fathers!), I CAN make their private lives total hell. Why should I stop with a “no-fly” list? I’m liking a “no-hire” list, possibly also a “no-drive” list. Bombs fit in cars just as well as planes..

    Of course we’ve already got a “no-marriage” list, but it only applies to the homos.

  19. By the way, I just wanted to let all of you who have posted on this thread that you are on the federal “No-Fly” list. I am forbidden to tell you why, but I’m certain you can guess. *evil laugh*

    Except you, Dan. How would you like a job in the growing field of people-herding.. er, airline security?

  20. Thanks for claiming to be a civil libertarian; it was the funniest thing I’ve heard all week. But then, this is Hit&Run, where anyone who likes to get high and bitch about John Ashcroft can claim to be a libertarian.

    Dan-

    I’ve never gotten high in my entire life. I make the Mormons look like a bunch of potheads. Don’t make too many assumptions.

    And you don’t even know what my position is. All you know is that I took issue with your strawman characterization.

    I will resist the urge to cry out “Thou art not a libertarian!”, even though you did try to strip me of that label.

  21. Cops used to pull me all the time when I was young.
    I was pulled three times in thirty minutes one day.
    My car, a little TR-3 was searched twice, 2 blocks apart.
    I was pulled at least once a month, never ticketed.
    I kept asking why me?

    One cop said it was my slow driving, driving to the right,
    and driving the kind of vehicle I drove.
    (50 Ford/Dune buggy/beat up old pickup/sports car)

    I was also often ordered to lay on the ground,
    and once had a shotgun and pistol pulled on me.
    I was told I was “menacing” due to my size, dress,
    and general ‘look’ as well as getting out of my car.
    After that, I put my hands on the steering wheel,
    stayed in the car, turned on my interior lights,
    all at the advice of an officer to my question.

    So, with D, it might be his manner at the airport,
    or it might be the information age, and some past behavior
    has been noted and is following him.
    I’d try boarding with only my swim trunks and flip flops.

  22. I know that Andrew doesn’t want me to synopsize 24 episodes, but some of the people in this thread (no, I’m not referring to Andrew, he hasn’t even posted in this one) would approve of what happened tonight on 24:

    Our hero, Federal Agent Jack Bauer, is coordinating with British intelligence on an investigation. He captured a woman with ties to the terrorists and told her that he’s bringing her in for questioning. She demanded to have a lawyer present. He told her that he’s taking her to be questioned by an agent of a foreign government, so her Constitutional rights don’t apply.

    What an innovative approach! Even John Ashcroft would have been hard-pressed to come up with that one. I’m sure that some of the people on this forum will approve of this brilliant way to short-circuit due process! Maybe this idea should be adapted to real-world investigations!

    Remember, people, if you haven’t done anything wrong, you don’t have anything to fear when a government employee transfers you to the custody of a foreign government that isn’t bound by the US Constitution.

    (Yes, I realize that nobody actually suggested something so draconian. But somebody compared complaints about a permanent secret black-list to wanting to see terrorists succeed in their attacks, so why can’t I get my own unfair comparison? Oh, that’s right, there’s a different and lower standard for the loony uber-hawks…)

  23. I think the moral of this thread is that Black lists are OK if they are not secret, and there is a way of addressing your name being mistakenly put on the list.

  24. Thoreau,
    I have never seen a full episode of 24, but I saw one snippet where there was this one perp that was claiming that even though he was guilty he had a deal and they had to let him go. The the main charachter dude (Jack Baur I think) stood up and shot him. I thought that was pretty cool.

  25. I think you are about right on the money, Kwais.

    Database, RFID and biometric technology have the potential to help law enforcement make big steps toward making us safer, but transparency to the extent possible and remedies for people mistakenly included on watchlists and the liek are an absolute necessity.

  26. The perp who had the deal was set to testify in court against some terrorists who were part of a plot to nuke LA. Jack had to go undercover to get info from those guys, and the best way to get their trust was to bring them the severed head of the guy who had been planning to testify against them in exchange for immunity.

    So he did.

  27. My primary opposition to CAPS and the general behaviour of the TSA is that, as it is currently implemented, it has a *much* better chance of missing an actual threat than catching it, no matter how many David Nelsons it manages to search.

    The following link is a paper describing a ‘carnival booth’ method of gaming the system to allow someone with harm in mind to pass right through the system. Additionally, it goes into the statistics of detection, false positives and negatives, and it even gives some recommendations of what can be done to make the system more effective (business as usual is *not* one of those recommendations).

    http://www.swiss.ai.mit.edu/6805/student-papers/spring02-papers/caps.htm

    The primary problem with the current systems in place is that they provide, at best, the perception of security rather than actual security.

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