Due Process

No-Fly List Gets Twin Courtroom Floggings

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The federal no-fly list has been one of the more chilling consequences for the war on terror, less for its consequences (though those can be personally devastating) than for its arbitrary and unappealable nature. Now the American Civil Liberties Union reports on two cases in which federal judges assail the destructive consequences for liberty inherent in the no-fly list and the need for some formal means of appeal and redress.

From the ACLU:

On January 14, 2014, U.S. District Judge William Alsup issued a decision in the case of Rahinah Ibrahim, a Stanford PhD student and Malaysian citizen who was prevented from boarding a flight back to the United States, handcuffed, and held in a detention cell for two hours based on what turned out to be her mistaken placement on the No Fly List. After a trial, Judge Alsup concluded that the government's internal administrative redress procedures (the same procedures at issue in the ACLU's case) violate the Constitution's Due Process clause because they do not provide a meaningful opportunity to contest or expunge erroneous information that forms the basis for inclusion on the list. He required the government to disclose to Ms. Ibrahim whether she is on the No Fly List and to "cleanse and/or correct its lists" of mistaken information about her.

In another ruling issued on January 22, 2014, U.S. District Judge Anthony Trenga rejected the government's request to dismiss a case brought by Gulet Mohamed, a U.S. citizen who alleges that he was prevented from returning to the United States from Kuwait because he appeared on the No Fly List, and that he was subsequently subjected to beatings and mistreatment while in detention in Kuwait.

Judge Trenga was unsparing in describing the consequences of inclusion on the No Fly List: "The impact on a citizen who cannot use a commercial aircraft is profound," he wrote, and "placement on the No Fly List is life defining and life restricting across a range of constitutionally protected activities and aspirations." In short, in Judge Trenga's words, "a No Fly List designation transforms a person into a second class citizen, or worse."

This follows on a federal court decision in August that travelling internationally by air involves "a constitutionally protected liberty interest." While that case still has a way to go before it reaches a conclusion, the implications of a constitutionally protected right are that any limits on it must involve due process. Simply slapping names on a list because they're allegedly suspected of the definition-of-terrorism-of-the-week and leaving people stranded won't cut it.

The more recent decisions would seem to follow on that logic, recognizing that arbitrary limits on travel really do impair people's ability to exeercise their rights and such limits—especially when they involve official screw-ups—have to be fixable through some formal process.

Scott Shackford wrote up the January 14 decision, earlier. He noted that the feds were so petty, they actually barred Ibrahim's daughter from a flight to prevent her from testifying in the case brought by her mother.

Yes, a touch of due process would be welcome.

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  1. a No Fly List designation transforms a person into a second class citizen, or worse

    The government has a plethora of methods for doing that. I don’t know why they don’t just get over it, drop the mask completely, and make 2 classes of citizens. The ruling class(them) who are not governed by any law. And the serf class(us), who are governed by laws that they make up as they see fit. That’s already happening anyway, so why not just drop the pretending, it would be better that way, when none of us serf class has any illusion of freedom or civil rights left, that they can just trample over at will.

    1. “The government has a plethora of methods for doing that”

      A plethora?

      Jefe, what is a Plethora?

      1. I like the response – ‘Why, El Guapo?”, given with a tone that transmits the ‘why are you being a dick’ along with just a tiny bit of hurt and betrayal.

  2. He required the government to disclose to Ms. Ibrahim whether she is on the No Fly List and to “cleanse and/or correct its lists” of mistaken information about her.

    A happy conclusion to the case would be for the government to actually do this. A happier conclusion would be for the government to actually allow no-fly people a path for redress in general.

    1. actually allow no-fly people a path for redress

      Stop hating America, you terrorist.

    2. The happiest conclusion would be the elimination of the no-fly list altogether. Since when do we punish people without due process?

  3. The more recent decisions would seem to follow on that logic, recognizing that arbitrary limits on travel really do impair people’s ability to exeercise their rights and such limits?especially when they involve official screw-ups?have to be fixable through some formal process.

    I guess it’s time to create another massive bureaucracy, courtesy of the taxpayers, to fix yet another problem created by out of control government. Let’s call it the BOLM, Bureau of Lists Management. Once you find yourself on one of the many lists, you just file a claim involving draconian levels of documentation, and of course, the processing fee. JERBZ have been created, right out of thin air! And MOAR REVENUE! The government once again proves that they really are magical!

    1. Created by out of control government? If corporate greed hadn’t pushed the US to fight wars in the Middle East, then there would have been no Al Quaeda, and therefore no 9/11, and the no-fly list would be unnecessary. If you need to blame somebody, blame the corporate “people” who have forced this down your throat, not the hardworking men and women who toil at TSA checkpoints day and night to make sure you are SAFE when you travel!

      1. That is a special brand of crazy thom.

        Well done.

        (Unless that’s sarcasm. In which case, double Well done!)

        1. I think he’s serious.

          yes, that brand of ‘completely retarded’ is in fact VERY popular with the kids these days. The boot stepping on their neck *isn’t* really the government… its somehow WalMart. Or McDonalds. Or DuPont. How does that work you ask? DERP DERP DERP DERP DERP, that’s how.

        2. Oh shit, did I forget the /s tag? 😉

          It’s crazy that it’s not obvious.

          1. I thought it was obvious, but hey, Poe’s Law.

  4. so a judge rules that FYTW is not an applicable methodology.

    1. He must not have gotten the secret glasses that reveal the Constitution’s invisible text.

  5. I’m surprised by this. I mean, the list is classified, right? As are the reasons for being put on the list, right? So how can any of this be challenged without leaking classified information?

    1. Breaking News: judge who issued this ruling said to be seeking asylum. Consults Edward Snowden for possible locations.

  6. While some of the sources are classified, the list itself is not. It is considered Sensitive Security Information.

    1. correct. Because they have to share it with airlines to make the process work.

      Additionally, this is partly why the ‘redress’ system doesn’t really function: they only share “top level” (name) info with the airlines, so any further modification/amendment to names on the list are not available. They still end up getting ‘flagged’ and then subsequently ‘cleared’ when they call into the DHS hotline. I found that between 2006-2008 that they got much faster at this, to the point where you could pretty much get ‘cleared’ while still @ the check in counter.

      As noted: yes, I used it to cut the lines. All. The. Time.

  7. Wait, I thought that the ACLU was an anti-liberty organization that never did anything for individual rights.

    Pwned, biotches.

  8. Due process is always a welcome feature, but contesting it will mean spending a small fortune on some specialized litigator. Fine for a grad student and other upper-crust citizens, not so much for the poor schmuck from Turkey or Azerbaijan who happens to share a name with Ahmed the explosives expert.

  9. If you read more about these cases, however, you will find that all these whiny crybabys complaining about being on the No-Fly list have one thing in common – they all say they have no idea how they wound up on the list and don’t know how to go about getting their names off the list.

    Think about that. On one side, you have highly-paid professional list-makers who have put these people on the list and on the other side you have people who openly admit they don’t know a thing about how the list works. So who do you think is more qualified to decide whether or not the list is correct, the people whose job it is to make the list or the people who only know how to criticize the doers?

    I know if I were to find myself on a No-Fly list, it wouldn’t occur to me to think that the brave, selfless heroes who went above and beyond the call of duty to ensure the safety of this great nation and the liberty of her citizens by – at great risk to themselves – putting my name on the list had made a mistake. No, I would simply chastise myself for having unknowingly or unwittingly committed atrocities against my government. Then I would go down to the DMV and confess my sins and pray for absolution. Isn’t that how it’s supposed to work?

    1. You are absolutely right, and anyone who disagrees is only because they hate America and want the terrorists to win. I mean, if they weren’t doing something wrong, why would they be on a list? That’s what secret lists are for, to put people on who were doing something wrong, duh.

  10. “, Judge Alsup concluded that the government’s internal administrative redress procedures*… violate the Constitution’s Due Process clause because they do not provide a meaningful opportunity to contest or expunge erroneous information that forms the basis for inclusion on the list”

    * “T.R.I.P.” (Traveller Redress Inquiry Program. TRIP. Get it?? ‘you aren’t going anywhere, but trying to figure out why you’ve been detained is a *trip*’)

    I’ve commented before on my own experiences, and shown the Kafkaesque form-letter they give you after you’ve participated. The notable features being =

    a) it neither confirms nor denies that you were in fact singled out for ANY reason,

    b) that if any said reason existed it was none of your business, and

    c) the existence/non-existence of the alleged ‘reason’ WILL NOT CHANGE in any way due to your application for redress, but will simply be highlighted as ‘modified’ such that in the future you MAY not be stopped *as much*, but hey, they can’t make you any promises there either, so get used to it big boy.

    Its the last one that really galled me = that they require you go through this detailed process of “proving who you are”, and yet at the end of it, say, “It makes no difference: the list doesn’t change – the list just gets *modified*”

    1. (contd)

      The “eternal retention of names” was explained to me a couple of times by different people (*DHS personnel I managed to corner in airport bars) as merely a bureaucratic snafu, where data can not be ‘deleted’ from the system. Other times it was explained to me that the information was shared with other agencies and they want the ‘raw data’. In any case, I was probably more miffed about perpetually being a ‘flagged person’ than whatever delays they caused me at the airport.

      I find it sort of depressing that it has taken close to 10 years for any judge to look at this and go, “Hey, wait = this is bullshit!?” No duh.

      I wonder if this ruling eventually provides me the opportunity to request the ‘ol “confirm or deny” whether I’m still on there, but just not ‘active’…

      1. So you were told “you aren’t allowed to fly, but that doesn’t mean you are on a list of people who aren’t allowed to fly”?

        I wonder, if a ticketing agent were to make a mistake entering your information and were to mistakenly tell you you weren’t allowed to fly, would calling the hotline to complain about being on a list which you are not in fact on be enough to trigger the requirements for having your name put on the list?

        Maybe that’s your problem – if you complain about mistakenly being put on the list, your name goes on the list.

        1. “So you were told “you aren’t allowed to fly, but that doesn’t mean you are on a list of people who aren’t allowed to fly”?

          Negative.

          I was cut off from using e-ticketing systems, would have to go to check-in, where the desk clerk would alert security to come and get me, take my bags out of my sight and search them, and conduct personal ‘secondary screening’ which amounted to a pat down and a brief interview – then I’d get put on my plane.

          This happened every time I flew for about 3-4 years. I gradually learned to milk the system to where it actually became something of a luxury.

          But the point was, in my attempt to ‘get off the list’, it was explained to me “no one gets *off* the list” = you are just ‘qualified’ differently. This was explained formally by DHS in the manner described above.

          As to your question = no – AFAIK airlines don’t provide ‘new IDs’ for the traveler screening lists. They come from top down.

        2. It’s lists all the way down.

  11. Someday soon DC9s will go the way of the 727.

    1. After Boeing bought out McDonell Douglas, they started rebadging them as 717s.

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