Guns

Here's Why the ACLU Is Suing the Government over the No-Fly List—and Winning

You'd think our constitutional expert of a president would have a better grasp of 'due process.'

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"Sorry, we're out of due process. Would you like a Diet Coke, instead?"
Credit: Austrian Airlines

Last night, President Barack Obama made it abundantly clear in his speech that his administration is behind the push to deny guns to those who show up on federal no-fly lists. He said, "Congress should act to make sure no one on a no-fly list is able to buy a gun. What could possibly be the argument for allowing a terrorist suspect to buy a semi-automatic weapon? This is a matter of national security."

Obama, a constitutional scholar, knows full well about this little thing called "due process," which prohibits the government from simply depriving people of their rights on the basis of just official suspicion. And he also knows full well that the lack of due process with the no-fly list is causing the Department of Justice and the Department of Homeland Security some serious legal headaches. It's not the National Rifle Association (NRA) that's keeping the administration from depriving people on the no-fly list their rights; it's the American Civil Liberties Union (ACLU).

Rahinah Ibraham is not a suspected terrorist. She was a scholar and doctoral candidate at Stanford University in the United States from Malaysia with a valid student visa. She ended up on the no-fly list on what turned out to be a clerical error. It wasn't even a case of mistaken identity. An FBI agent literally checked the wrong box when filing paperwork in 2004. It took a decade of fighting with the government to fix this problem. Why? Because the system by which the government adds people to the no-fly list has absolutely no transparency or due process in its appeal process. Until this year, the federal government wouldn't even confirm that an individual was even on the no-fly list, which coincidentally made it a challenge to fight one's inclusion. A judge in 2014 ruled that the government violated Ibraham's and others' rights by mistakenly adding them to the no-fly list and refusing to fix the problem.

Ibraham's case wasn't an ACLU case, but the ACLU has filed a lawsuit on behalf of 13 people, including four veterans, who have been placed on the no-fly list and not given appropriate due process procedures to have their names cleared. The ACLU (and others like Ibraham) have gotten a partial victory. The federal government will now actually inform individuals (if they actually ask) whether they are on a no-fly list. If possible, it will provide unclassified "summaries" of their reasons for being on the list.

But that's still not real due process, and the ACLU is not satisfied. They're continuing to challenge the lack of transparency and ability to appeal the no-fly list. From their case page:

 [T]he government still keeps its full reasons secret. It also withholds evidence and exculpatory information from our clients and refuses to give them a live hearing to establish their credibility or cross-examine witnesses. Because of these and other serious problems, the ACLU has challenged the revised process as unconstitutional.

Until the government fixes its unconstitutional new process, people on the No Fly List are barred from commercial air travel with no meaningful chance to clear their names, resulting in a vast and growing group of individuals whom the government deems too dangerous to fly but too harmless to arrest.

The way the federal government under Obama has managed the no-fly list is already a fairly clear violation of our Fifth Amendment right to due process of law. Adding restrictions to the Second Amendment would be yet another violation. Fortunately, the Senate has already said no to what Obama demanded Sunday evening. Unfortunately, every Democrat except for one (Heidi Heitkamp of North Dakota) voted in favor of Obama's blatantly unconstitutional proposal. It's a cynical effort to try to get culture war support, using fear of guns to turn Americans against basic civil liberties.

NEXT: Two New York Times editorials: 'Terror watch lists run amok' -- now let's ban gun purchases by people who are on them

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  1. “This is a matter of national security.”

    He left out “for the chillunz!”

  2. Due process? Why do you want the terrorists to win?

  3. Was any of the people who committed mass murder or terrorism on the No-Fly list. I can’t remember hearing of any.

    1. Nope, the FBI confirmed that the couple in the latest terrorist attack weren’t on the No-Fly list. Which makes for the call to ban people on the list from buying guns even more obviously ridiculous.

      1. See? We need more people on the No-Fly list.

      2. That’s the standard pattern after a mass shooting, they never propose anything that would have prevented it.

    2. I’m sure they were added posthumously.

      1. Who, Harry Buttle or Harry Tuttle?

  4. Having a way to complain about an act of aggression by the state is insufficient. The “no-fly” list is a punishment, and inflicting any punishment on a person without a conviction in a court of law is a violation of their civil rights.

    -jcr

    1. Ding ding ding

      1. That means I agree

  5. The San Bernadino shooters weren’t on the no-fly list. Neither were the Fort Hood shooter, the Tsarnaev brothers, or the Muslim who shot up that recruiting office. Or the Planned Parenthood guy, for that matter. So even setting aside the obvious Constitutional problems, what problem is this going to solve? It’s not even “locking the barn after the horse is stolen.” There’s simply no connection between the action and the supposed problem.

    1. what problem is this going to solve?

      It sounds good, and it is something.

      1. Exactly. We must do something; this is something, therefore, we must do it.

        1. And if it makes the NY Daily News STFU already, it might even be worth it.

          1. so, do what I have always done to solve that problem.. just don’t read the NY Daily News. Simple and certai fix.

      2. And it makes idiots feel safe. Won’t somebody think of the idiots?

      3. It solves the problem of appeasing the pants-shitters registered voters.

    2. Obama gave a speech. A speech about doing something. That’s exactly what’s needed in these trying times. What do you want, a new hashtag or something? Geez.

      1. #bringbackourrights

        1. If I ever found myself in a position to use a hashtag, this would be the one I picked.

      2. #NoFlyListGunRightsDon’tMatter

      3. He actually has started a new hashtag, #dosomething. Too stupid to even parody.

    3. what problem is this going to solve?

      The current deplorable inability to seize guns from any law-abiding American citizen, based up on a secret star chamber finding that the citizen has engaged in doubleplusungood badthink?

      1. Nah. Politicians don’t want guns, they want votes. To accomplish their goal, they just need to look like they are doing something. That is enough to maintain power.

        1. Actually, they would LOVE to be able to continue as things are without the need to get votes.

    4. That’s because the REAL problem isn’t gun violence, the real problem in the eyes of politicians is “people want me to DO SOMETHING in response to gun violence.”

      So just doing the first thing that comes to mind fixes the politician’s real problem. The supposed problem need not be addressed in order to keep votes.

      1. I do want them to do something about gun violence. I want them to arrest, try, convict and punish those who commit gun violence. Then they can take the rest of the day off…with pay.

  6. The way the federal government under Obama has managed the no-fly list is already a fairly clear violation of our Fifth Amendment right to due process of law. Adding restrictions to the Second Amendment would be yet another violation.

    Why should any official care? There are no consequences for violating American’s rights. It’s not like we can tar and feather then and run them out of town on a rail.

    Actually, this is an argument to get rid of the Secret Service…

    1. It’s not like we can tar and feather then and run them out of town on a rail.

      The first thing we do, let’s kill all the lawyers.- BS

      Then we can get back to tarring and feathering.

      1. I don’t think a lawyer would stop a pissed off crowd. A guy with a submachine gun on the other hand…

        1. No, but they’ll gladly help convict/sue them after the fact.

          1. Again, without the man with the submachine gun, why would the mob care? The institution that claims a monopoly on violence has little power without the means to inflict violence.

  7. The Constitutional issues alone are enough to make the President’s proposal repugnant, but is there even a single case of terrorism or mass violence being committed by somebody already on one of these no-fly lists? Were the San Bernardino duo on one? Was the Ft Hood shooter on one? The Chattanooga shooter?

    I get that Democrats know they are unlikely to ever get political support to amend the Constitution to curtail gun rights, and thus strategically this “death by a thousand cuts” approach is the only realistic strategy available to them, but this proposal in particular seems like a bizarre approach to take, since they stand a good chance of taking a political beating over it for what appears to be no gain at all, either material or symbolic, even if they succeed.

    It would seem the idea is predicated on the assumption that Americans fear terrorists more than they support gun rights, and that if they portray support for the Second Amendment as enabling terrorism, citizens will give up the former to combat the latter. I’m in disbelief that they think that will actually work, but I guess we will see.

    Also, would anyone around after 9/11 have ever predicted that by 2015, the Democrats would be pushing to strip civil liberties from people without sure process, with the Republicans attempting to thwart them? These are strange times indeed.

    1. It’s all theater. If a Republican gains the White House this election, they’ll just switch roles.

    2. Also, would anyone around after 9/11 have ever predicted that by 2015, the Democrats would be pushing to strip civil liberties from people without sure process, with the Republicans attempting to thwart them? These are strange times indeed.

      Don’t kid yourself. The only reason Republicans care about due process is because the issue is guns. They CLEARLY don’t give a flying fuck about the existence of a No-Fly list to begin with.

      1. Yeah that would seem to be the case. The Republicans probably agree with a no-fly list, actually, same as they (except for Rand) agree with NSA spying.

  8. Not only no, but fuck off, slaver!

  9. I tell people that ‘Brazil’ is a documentary and they call me a paranoid conspiracy nut.

    Harry Buttle died for our sins.

  10. OT, but it’s great having the Top Men watching out for our best interests:

    “Top VA Watchdog Resigned After Being Caught Masturbating On The Job”
    Read more: http://dailycaller.com/2015/12…..z3teoulqCC

    There’s a Weiner joke in there someplace…

  11. You’d think our constitutional expert of a president would have a better grasp of ‘due process.’

    No, I wouldn’t. I’d think he’d say something like, “What could possibly be the argument for allowing a person on the ‘no-fly list’ to buy a semiautomatic weapon?”

    1. His only “expertise” on the Constitution is his understanding that it constrains the government with “negative rights”.
      To complain about that, shows he has zero understanding of the intent of the document.
      That our Supreme Law of the Land’s intent was to restrict government was a feature, not a bug.

  12. President Barack Obama made it abundantly clear in his speech that his administration is behind the push to deny guns to those who show up on federal no-fly lists.

    “No-Fly lists are an affront to civil liberties and the concept of due process! Who could be in favor of that?”

    ? “Psst! We can use them to deny people their right to own and bear arms.” ?

    “Like I said: No-fly lists should be considered a great tool to stop terrorists from obtaining weapons to commit mass killings! Who could be against that?”

    See? LOGIC!

  13. Scholars usually produce works of scholarship.

    1. *Dreams of My Daddy Issues?*

  14. If they were as innocent as they claim, why would’ve the summer intern at Justice have put their name on that list?
    Answer that you civil libertarian extremists.

  15. The way the federal government under Obama has managed the no-fly list is already a fairly clear violation of our Fifth Amendment right to due process of law. Adding restrictions to the Second Amendment would be yet another violation.

    A twofer! Now, if we could also deny free speech (which is hate speech anyway, duh!) to people on no-fly and subject them to warrantless searches, we’d really have a humdinger of a law! And let’s quarter soldiers in their houses too!

    Oh No-Fly List! What can’t you do?

  16. As John C. Randolph pointed out above, banning someone (or at least a citizen – NUGCC) from flying planes is a criminal punishment, which must be preceded by a conviction by a jury or a guilty plea.

    Even if we don’t think banning air travel is a criminal punishment, then a ban on air travel coupled with a prohibition on bearing arms *is* a criminal punishment. The resemblance to a duck would by that time have become indisputable.

    This is evolving into an administrative “banning order,” like in apartheid era South Africa. A minister could, with a stroke of his pen, limit someone to living in a particular area, limit their contacts with other people, and ban them from being quoted in the media.

    The travel restrictions and gun bans are a step in that direction. And they’re already talking about restricting people from using the intertubes for extremist speech or anti-Muslim hate speech.

    1. “The banning of individuals in South Africa was a practice virtually unique among nations with legal systems derived from Roman or common-law traditions. At the order of the minister, a person deemed a communist, a terrorist, a member of a banned organization, or otherwise a threat to the security and public order of the state could be confined to his home or immediate surroundings, prohibited from meeting with more than one person at a time (other than his family), forced to resign any offices in any organization, prohibited from speaking publicly or writing for any publication, and barred from certain areas, buildings, and institutions, such as law courts, schools, and newspaper offices. Moreover, the banned person could not be quoted in any publication. The effect was to render the banned person a public nonentity. Opponents of the apartheid regime could be banned on the whim of a minister or even a local police officer and be deprived of any legal safeguards in the event of their disappearance or death. From 1950 to 1990 more than 2,000 people were banned in South Africa , such as ANC leader Albert Luthuli, who was banned and confined to his home for lengthy periods of time in the 1950s.”

  17. Very good and useful article. Just one point: it’s a big, big, big stretch to call Obama a “constitutional scholar.”

  18. Prohibiting someone from the liberty to board a commercial aircraft without first putting that person through a valid and open due proces of law regimen is a form of punishment. And we KNOW FedGov have a habit of punishing people by false accusation… even if they prevail and “win” the case, the process still destroys their lives. Jail time, lost job, reputation, hundreds of thousands in legal fees and costs, and sometimes years of their lives trying to clear their name. FedGov use the process to punish those whom they target. And I’ll lay high stakes at very long odds there ARE people on the No Fly and Terrorist Watch Lists that are no more harmful than my neighbour’s big ol sweetheart of an affabel red setter dot who is everyone’s friend. The ACLU are correct. And I am glad, for once the NRA don’t need to take up such a baton.

  19. Prediction: If people on the no-fly list are banned from having guns then people will start straw-purchasing, often without even charging for it. It will become harder to trace guns used in crimes or determine that suspects have guns. More crime will result.

    1. This is the elephant in the room. When you restrict legitimate activity from the free market it will merely continue in the black market. The market abides.

  20. The country could save millions by putting michelle obama on the no fly list given the excessive vacationing she has done on the public dollar.

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