Feds' Nervy Defense of No-Fly List Meets a Skeptical Judge

Reason

In Portland, Oregon, U.S. District Judge Anna J. Brown heard arguments for and against the U.S. government's due process-free procedures for denying people access to commercial air travel, and seemed distinctly unimpressed by the line taken by the Justice Department. That may bode well for people who have not only been inconvenienced and enbarrassed by being booted from domestic flights, but also those unlucky souls who have been stranded in distant countries after being added to the no-fly list without explanation.

From Yahoo! News:

A federal judge took a dim view Friday of the government's argument that air travel isn't a fundamental right to U.S. citizens on the no-fly list.

The list, a well-protected government secret, decides who may fly from U.S. airports. It is also, according to testimony, shared with operators of passenger ships as well as 22 other countries.

Thirteen people on the no-fly list have sued the U.S. government, arguing that their placement deprives them of due process and smears their reputation by branding them as terrorists. Several of the men who filed suit have been surrounded at airport security areas, detained and interrogated.

The suit seeks to either remove the plaintiffs from the no-fly list or tell them why they are on it.

Yes, you read that right. The federal government frequently won't even tell people why they are forbidden to fly, and addition to the list can be so sudden and without warning that people have flown overseas only to discover that they can;t board a flight to return home. In preparation for making arguments on behalf of the plaintiffs, American Civil Liberties Union attorneys raised a few concerns about due process.

From the ACLU:

"We're asking the court to finally put a check on the government's use of a blacklist that denies Americans the ability to fly without giving them the explanation or fair hearing that the Constitution requires. It's a question of basic fairness," said ACLU Staff Attorney Nusrat Choudhury, one of the ACLU attorneys who will argue the case Friday in Portland. "It does not make our country safer to ban people from flying without giving them an after-the-fact redress process that allows them to correct the errors that led to their mistaken inclusion on the list."

Of people suddenly denied the ability to board a plane, the ACLU adds:

Their only recourse is to file a request with the Department of Homeland Security's "Traveler Redress Inquiry Program," after which DHS responds with a letter that does not explain why they were denied boarding. The letter does not confirm or deny whether their names remain on the No Fly List, and does not indicate whether they can fly. The only way for a person to find out if his or her name was removed from the No Fly List is to buy a plane ticket, go to the airport, see if he or she can get on the flight – taking the risk of being denied boarding and marked as a suspected terrorist, and losing the cost of the airline ticket.

But this is fine with the feds. In court, they argued that, because people stranded overseas have occasionally been able to book a slow cruise home on a banana boat or other non-verboten means of transport, all is well! That didn't sit well with Judge Brown. Again, from Yahoo! News:

Some of the men suing the government took alternate means to get back to the U.S. after their placement on the list, and government attorney Scott Risner used that as proof that they have alternatives to air travel.

U.S. District Judge Anna J. Brown in Portland said the government's argument about alternatives to air travel doesn't take into account the reality of modern life and "seems fundamentally wrong."

People could also theoretically take a rocket ship, the judge said at Friday's hearing. She noted that sea and land travel may not satisfy the need to visit a sick relative in time, and the plaintiffs "don't have transporter rooms like in Star Trek."

If I were Judge Brown, I might avoid any overseas flights before issuing a ruling.

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