War on Terror

Government Lawyer Concedes There's No Way To Escape the No-Fly List

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We're watching you. Maybe.

The American Civil Liberties Union is currently in the Ninth Circuit Court of Appeals representing a group of Americans and legal U.S. residents who believe they're on government watch lists, including the no-fly list, and want to find out why. Just as important, they want access to a means of getting off those lists. As it is, the goverment's redress procedures are a little opaque, including the warning, "Because the contents of the consolidated terrorist watchlist are derived from classified and sensitive law enforcement and intelligence information, the [Terrorist Screening Center] cannot confirm or deny whether an individual is on the watchlist." The ACLU is looking for something a tad more informative and effective to help people who'd like to know why federal officials won't let them onto airplanes and what they can do about it.

The ACLU blog reports this interesting exchange in the course of arguments this past Friday:

Chief Judge Alex Kozinski had a simple question for the government attorney: what would you do if you found yourself on the No Fly List? After some hemming and hawing, the attorney said that he would seek "redress" from the Department of Homeland Security – even though DHS does not place people on the No Fly list and has no authority to remove them (that's the FBI's job). Because, the lawyer conceded, DHS would not be able to confirm or deny whether he was on the list, he would then seek review in a federal appellate court. And what would the court be able to do?, asked Judge Kozinski. Not much, said the government lawyer. In fact, the lawyer would not even concede that a federal court possessed the authority to order someone removed from the No Fly List.

Invoking Kafka tends to draw the oh-so-jaded cliché police, but it seems appropriate enough here. As the ACLU's Ben Wizner notes, "The Due Process Clause of the Fifth Amendment doesn't have very many words, but if those words are to retain their meaning, the Ninth Circuit will have to put a check on the government's ability to blacklist its citizens without recourse."

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  1. “How would I get off the no-fly list? Well, first I’d ask the Attorney General to have me taken off, then I’d make sure the agents who put me on the list got fired.

    “Or did you want me to guess how the little people could get off the list? Damned if I know.”

  2. Judge Kozinski seemed frustrated by the government’s equivocation. “So many words,” he said during an earlier exchange. “So little meaning.”

    Classic.

  3. I had to look twice to be sure this is the ninth circuit being discussed. Good grief. That list is about as close to absolute power as one can imagine.

  4. These lists are a one way street. They are one of the progressives greatest tools in their campaign to destroy every last vestige of civil rights and liberty.

    Once you are on a list, it is for life. You can never get off, because much like the article states, no organization that maintains the list knows how you got on, or who is responsible for getting you off.

    There lists must be completely destroyed and outlawed if liberty has any chance of survival.

    1. Yes, because heaven knows there were no lists before January 20, 2009.

      1. WTF are you talking about?

        1. He seems to think that because the Bush administration put people on the No Fly List, anyone complaining about the lists under Obama’s presidency is being a Team Red hypocrite, even if they are a libertarian posting on a libertarian web site and hate both of those presidents.

          Or something else equally stupid.

          1. Ah, I get it. I saw Bush as both a Neocon and a progressive. He is THE reason that I became a Libertarian.

          2. No, I think that blaming bad policies that receive support from a broad range of the political spectrum on “Progressives” is just partisan hackery.

  5. In fact, the lawyer would not even concede that a federal court possessed the authority to order someone removed from the No Fly List.

  6. After some hemming and hawing, the attorney said that he would seek “redress” from the Department of Homeland Security ? even though DHS does not place people on the No Fly list and has no authority to remove them (that’s the FBI’s job). Because, the lawyer conceded, DHS would not be able to confirm or deny whether he was on the list, he would then seek review in a federal appellate court. And what would the court be able to do?, asked Judge Kozinski. Not much, said the government lawyer

    How can someone defend this position with a straight face?

    Also, what are the chances this suit actually accomplishes anything? I thought the courts already made it clear ( I think in Gilmore v. Gonzales) that you don’t have a right to use any particular form of travel. That although you are entitled to travel, you don’t have a right to a particular form of travel??

    Doesn’t that kind of nip these types of suits in the bud?

    1. How can someone defend this position with a straight face?

      because he’s a govt lawyer and fuck you, that’s why. BTW, since you seem new here, the f-you retort is pretty standard govt issue response to questions that govt folks don’t like to hear asked.

      1. ChiTom is not new but resurrected.

    2. How can someone defend this position with a straight face?

      Because they are getting paid to defend the indefensible, and going through law school ought to accustom you to lying with a poker face.

  7. Even if the court were to order someone removed from the no-fly list, there’s no practical way to enforce it, since the list is top-secret and almost certainly non-discoverable.

  8. I fart in the general direction of the Clich? Police. Mwuhahahahhah!!!

    To be or not to be, that is the clich?

  9. the Ninth Circuit will have to put a check on the government’s ability to blacklist its citizens without recourse.

    Hell getting put on the list seems to lack any due process in the first place, (some unidentifiable asshole in the FBI gets to choose at random) let alone providing a process to try to get off it.

    1. Actually, it seems you don’t even have to be put on the list to be “on” it. As in toddlers being yanked from flights because their name is flagged.

  10. Invoking Kafka tends to draw the oh-so-jaded clich? police

    Catch 22, Brazil, The Cat who could walk through walls, anything by Ayn Rand, The Third Man (non-fiction)…

    To be honest Kafka seems tame compared to these later works.

  11. I guess I’m confused here, but how can they prevent people on the list from flying if there’s no way to find out if someone’s on the list?

    It’s kind of an epistemological pretzel, isn’t it?

    1. Government agents with the proper security clearance can see who is on the list.

      The issue is about private citizens lacking that clearance getting access to that list to find out why they are on it, and then appeal that listing.

  12. If you allow people an avenue to get off the no-fly list, then terrorists will be in the aisle and window seats next to you, probably holding a crying baby the whole flight.

    1. They will also be fat – really, really fat.

      1. And when asked to pay for an extra seat, they will issue irate tweets and sue the airline. This is how they will insidiously blend in with Real Americans.

    2. The baby part really worries me. A terrorist will probably just try to blow up his own underpants (and fail) but a crying baby for the whole trip? That shit ought to be reported to Amnesty International.

  13. All the people who ask why they’re on the list are probably terrorists…

    /sarcasm

  14. I hope the courts start to knock this shit down, here’s another

  15. Invoking Kafka and airports? So much awesome.

  16. “If you haven’t done anything wrong…” v 20365

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