Court Sides With ACLU On Unconstitutionality Of The DHS's No-Fly List

from the prying-our-rights-out-of-the-govt's-cold,-undead-fingers dept

Thu, Aug 29th 2013 1:44pm — Tim Cushing

Some good news has arrived on the Homeland Security front (although the department in charge of securing the Homeland probably wouldn't agree). Last time we visited the infamous "No Fly List," a federal judge (Anna J. Brown) wasn't buying the government's arguments in favor of preserving the list's lack of transparency or redress options. The ACLU, arguing on behalf of 13 list members, pointed out that the system violates citizens' (there are more than 20,000 names on the list) right to due process.

As if being on the list and having no way to be removed wasn't enough of a problem, the government made it clear it believed air travel and international travel in any form were luxuries granted by the State. The government's argument was Marie Antoinette-esque in its dismissive simplicity: let them drive cars.

During deliberations, Judge Brown swiftly undercut the government's argument that air travel is nothing more than a "convenience."

"To call it 'convenience' is marginalizing their argument," Brown said. [She] said alternatives to flying are significantly more expensive. "It's hugely time-consuming, and who knows what impediments there are between the Port of Portland and other countries."

The government apparently failed to make any further inroads at impressing the judge over the past couple of months. The ACLU announced today that the federal court has found in its favor.

A federal court ruled late yesterday that constitutional rights are at stake when the government places Americans on the No Fly List, agreeing with the plaintiffs in a lawsuit filed by the American Civil Liberties Union. The suit challenges the process for attempting to get off the list as unfair, inadequate, and unconstitutional. The decision also asked the ACLU and the government to submit additional information about the No Fly List redress procedure in order to help the court decide the ultimate question of whether it satisfies the Fifth Amendment's guarantee of due process.

We'll likely be waiting quite some time for the government to get its input together, if other TSA-related input-gathering efforts are any indication. As it stands now, the so-called redress procedure offered by the DHS is a pointless waste of paper for everyone involved. Here's that procedure in all its glory.

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.

That's not due process. That's a form letter awaiting a name to insert between the placeholder brackets.

In her ruling, Judge Brown reiterated the her problems with the government's insistence that air travel is a "convenience."

"Although there are perhaps viable alternatives to flying for domestic travel within the continental United States such as traveling by car or train, the Court disagrees with Defendants’ contention that international air travel is a mere convenience in light of the realities of our modern world. Such an argument ignores the numerous reasons an individual may have for wanting or needing to travel overseas quickly such as for the birth of a child, the death of a loved one, a business opportunity, or a religious obligation… the Court concludes on this record that Plaintiffs have a constitutionally-protected liberty interest in traveling internationally by air, which is affected by being placed on the list."

This is good news for the 20,000 unwilling participants in the DHS's no-fly program. I would imagine the government will be appealing this decision as any changes to its (lack of) redress process will probably cause "grave damage to national security," especially as it will now require the DHS to divulge some sort of actual information as to why Person A is on the list.

More likely the real reason for this opacity is to prevent the public from recoiling in horror at the briefest peek into the crafting of War on Terror™ sausage -- a process that seems to involve running a variety of amendments through the grinder along with handfuls of tax dollars. This win is a small push back against that apparatus and stakes another one of ACLU's flags into a chunk civilly liberated territory.

Latif v Holder Opinion and Order (PDF)Latif v Holder Opinion and Order (Text)

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Filed Under: constitution, convenience, dhs, due process, homeland security, no fly list
Companies: aclu

32 Comments

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Sneeje (profile), 29 Aug 2013 @ 1:40pm

I have no proof of this, but...
If you think the no-fly list is checked ONLY when you try to fly, I would suggest that you are wrong.
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Anonymous Coward, 29 Aug 2013 @ 1:50pm

Government Blessings
"the government made it clear it believed air travel and international travel in any form were luxuries granted by the State"

How much longer will it be before the "Rights" that our Amendments afford us are just "luxuries" granted by the State?

Wake up folks, if you support(ed) the existence/creation of DHS/Patriot Act then how can you reconcile what it has brought us with being American?
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GeneralEmergency (profile), 29 Aug 2013 @ 1:59pm

As a Law Abiding American...
.

...I am fed up with all this over-reaching secrecy in the name of "National Security" being misapplied to this cowardly "War on Terror".

Real Men -know- and can -boldly name- their mortal enemies.

Once openly named, Real Men -wade forth- and -destroy- those enemies first.

To our everlasting shame, the ghosts of the "Greatest Generation" will eternally refer to us as the "Generation of Cowards".

.
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Rich, 29 Aug 2013 @ 2:06pm

Re: Government Blessings
You are making the common error that your rights are just those enumerated in the Constitutional Amendments (the very rights the authors were reluctant to list any at all). The Constitution defines the limits of government, not the totality of our rights.
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Anonymous Coward, 29 Aug 2013 @ 2:17pm

"no fly" is code for "we don't like you"
It makes absolutely no sense to prevent people from flying based on who they are... it's really just a way to piss people off that the government doesn't like.

What are they afraid of exactly? That these people are smuggling bombs inside their body cavities? As if that's something that only those 20k people are capable of?

Otherwise, why can't they assure that these people are just as non-dangerous as any other traveler? I thought that was the whole point of slowing EVERY OTHER PERSON down with TSA.
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Anonymous Coward, 29 Aug 2013 @ 2:18pm

Re: Re: Government Blessings
You may have missed the point of my argument. You are correct the constitution was not intended to enumerate all of our rights, but it at the very least was intended to prevent the abuse of what are considered at the very least "basic rights". I was talking about that... considering the assault on the 2nd & 4th amendments and how far they have already proceeded, then again, I would ask the question... how much longer before even your basic rights "guaranteed" by our constitution are considered "Luxuries" granted by our government.

I should have used the word "guaranteed" instead of "afford" to better clarify my argument.
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Vidiot (profile), 29 Aug 2013 @ 2:19pm

Precedent?
Wow... a judge who values "right to due process". This is the first positive news I've seen along these lines. In my dreams, this triggers a domino-like reaction... creates a precedent for all the other you're-not-allowed-to-know-why scenarios that hide behind the banner of preventing terrorism.
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kenichi tanaka (profile), 29 Aug 2013 @ 2:20pm

I just thought of something. Between the airlines and the TSA, they are actually colluding in a scam to defraud American citizens of their money.

Take this for what it's worth: you buy an airline ticket, you get in line to get on your flight, the TSA denies you entry and you discover you're on the no-fly list. The airline then denies you a refund.

So now, you not only were denied entry on an airline flight but now you can't even get a refund on your ticket because you were denied entry on the flight.

SCAM, COLLUSION, PYRAMID SCHEME, CON-ARTIST, TSA, AIRLINE INDUSTRY
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Digitari, 29 Aug 2013 @ 2:31pm

Re:
This is the exact reason the Airline Industries ALLOW the TSA to operate, it's their "Kick-back"
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Anonymous Coward, 29 Aug 2013 @ 2:37pm

The ruling is simple, yet solid. I doubt it will get overturned.

The question is how do you force DHS for continuing to do this? I fear it may need a few other lawsuits to make them stop, or a new law forcing them to stop.
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Anonymous Coward, 29 Aug 2013 @ 2:59pm

Re:
"how do you force DHS for continuing to do this?"

Remember, when officials go against an established ruling, they lose qualified immunity and are PERSONALLY liable for violations. How long do you think any particular official will continue doing this when it's their personal money on the line?
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Anonymous Coward, 29 Aug 2013 @ 3:05pm

Re:
What percentage of the ticket fees of refused passengers goes back to the TSA? I'd be willing to bet it's at least 50%. The kickback to TSA is what keeps the list active. They have no incentive otherwise.
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Anonymous Coward, 29 Aug 2013 @ 3:09pm

Don't Hold Your Breath
As usual, the government is appealing this decision. The back and forth will probably take years. You might see a final decision by 2020, maybe. More lawsuits, please.
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Anonymous, 29 Aug 2013 @ 3:37pm

Re: As a Law Abiding American...
Never did know what made them so friggin' great.
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lucidrenegade (profile), 29 Aug 2013 @ 3:39pm

Re:
Like anyone else. Hit them hard in the pocketbook.
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Namel3ss (profile), 29 Aug 2013 @ 4:11pm

Any takers on this bet?
I bet 0bama, Holder, et al basically just ignore this ruling just like they do with pretty much everything else they don't like/disagree with/whatever.

Any takers?
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GeneralEmergency (profile), 29 Aug 2013 @ 4:44pm

Re: Re: As a Law Abiding American...
.

They stood up to the forces of German Nazism, Japanese Imperialism and Italian Fascist tyranny and saved the world from 1000 years of darkness.

They stood as men, named the enemy who had named us as the enemy first, then formed armies that proceeded to kill that enemy and to break all their stuff.

War is an ugly, regrettable business, but it is always preferable to allowing the cowards amongst us to turn us into tyrannical copies of the very enemies we abhor.

.
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Dirkmaster (profile), 29 Aug 2013 @ 5:12pm

Now wait just a cottin' pickin' minute...
"the government made it clear it believed air travel and international travel in any form were luxuries granted by the State"

There is no such thing. The State has nothing to give, it has NO inherent powers or ownership to withhold. It has no power at all except what WE THE PEOPLE give to it. So the State is saying the a privilege that we gave them they can keep from us? How did they even think this argument would work?
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JMT (profile), 29 Aug 2013 @ 5:47pm

Re: "no fly" is code for "we don't like you"
Too dangerous to fly but not dangerous enough to arrest. It's a logical paradox only the government could come up with and defend.
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Uriel-238 (profile), 29 Aug 2013 @ 5:59pm

Planes will fall from the sky, I tells you!
FALL FROM THE SKY!
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Pixelation, 29 Aug 2013 @ 10:02pm

Judge Brown is obviously a terrorist. Unless the NSA is is an over reaching, over aggressive branch of the government.

At least there is one judge left that isn't a Obama crony.
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Bergman (profile), 30 Aug 2013 @ 12:34am

Re:
Simple. Put the DHS employee roster on the no-fly list and make it illegal to take someone off it without following the proper procedures which must (by legislated mandate) be transparent, simple and easily understood.

I bet it would take DHS less than 48 hours to "fix" the problems...
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Bergman (profile), 30 Aug 2013 @ 12:35am

Re: Planes will fall from the sky, I tells you!
No, it's balloons that fall from the sky when deprived of hot air, get it right.
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Ninja (profile), 30 Aug 2013 @ 4:11am

At the very last the list should be public so you won't make these people spend money on tickets just to be stopped in the airport. But all this terrorism circus has caused many, many innocents to suffer the consequences. There's a recent case here in Brazil where Qatar Airlines didn't allow a student to board to Bali where she would participate in an international congress because her father made a joke on terrorism (he said something like "Thank God they didn't think you were a terrorist!"). Not only this student lost her opportunity but now she has to pay her debt of $3000 because while the University is public and technically the students don't spend a dime she didn't actually participate making a reimbursement mandatory by the University rules. But that's not all, her family does not have substantial incomes and this kind of debt will take years to be paid. Since we are talking about Brazil and not the US the civil aviation agency is looking into the matter to check if there was no abuse but what surprised me is that even though we have no issues with terrorism this idea is already input into the agency's heads which is a shame - and I think we can thank the US for that as we have to comply with their paranoia to have flights to the US.

Anyway, further reading:

http://www1.folha.uol.com.br/cotidiano/2013/08/1331919-apos-piada-brasileira-e-barrada-e m-voo-para-bali.shtml
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StaffSergeantSlinkySlim, 30 Aug 2013 @ 5:56am

Re: As a Law Abiding American...
.. reporting for duty, Sir.
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IP Lawyer, 30 Aug 2013 @ 9:29am

Tim, misleading title.

The court did *not* say that the no-fly list was unconstitutional, nor did it say the redress procedures were unconstitutional. It said that constitutional rights were AT STAKE. It then further went on to request additional information to determine if, in fact, this policy was unconstitutional. Here is hoping the court continues down this path.
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Vincent Clement (profile), 30 Aug 2013 @ 12:04pm

Re:
You're just figuring this out now? Do you honestly believe that Global Entry is about keeping the US secure or about generating revenue?
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teka, 30 Aug 2013 @ 10:18pm

Re: Now wait just a cottin' pickin' minute...
This viewpoint is backed up by all those people with guns who will appear when you challenge their ability to turn a right into a denied privilege.
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Anonymous, 31 Aug 2013 @ 6:26pm

Re: Re: Re: As a Law Abiding American...
"Wars not make one great." -Yoda

(Of course, the irony in that comment is that it comes from a movie in the "Star WARS" series.)
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Anonymous, 31 Aug 2013 @ 6:32pm

Re: Re: Planes will fall from the sky, I tells you!
And then crash in a New Mexican rancher's field. Weird how the government could mistake a balloon for a saucer, innit?
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Anonymous, 31 Aug 2013 @ 6:35pm

Re: Re: Re: Planes will fall from the sky, I tells you!
It's just a balloon, people. Rest assured, your government would never lie to you or cover anything up. Nothing to see here, folks, move along...
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Sheogorath (profile), 2 Sep 2013 @ 7:41pm

Re: Re: Planes will fall from the sky, I tells you!
Or if they're punctured. Who wants to stick a pin in a helium-filled politician?
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