Court Tells DOJ To Stop Stalling And Figure Out If People Suing Over No Fly List Can Get Off

from the pick-up-the-pace dept

Tue, Oct 7th 2014 1:32pm — Mike Masnick

Back in June, we wrote about an important ruling from a court in Oregon that found the process of getting off the Homeland Security "no fly list" to be unconstitutional. The government has continued to try to stall over this, but the judge has basically told the Justice Department to speed things up and to tell the plaintiffs whether or not they're still on the list, so that further legal action can move forward, if necessary (and, yes, it's likely necessary). From the official ruling:

No later than October 10, 2014, Defendant shall identify to the Court and Plaintiffs which Plaintiffs, if any, will not be precluded as of that date from boarding a commercial aircraft flying over United States airspace.

The court tells the US government that as soon as it realizes any of the plaintiffs shouldn't be on the list it needs to inform them of that fact, and for those that remain on the list, it needs to give a detailed reason:

If Defendants determine after the interim substantive review of a Plaintiff's status that such Plaintiff is not presently eligible to fly over United States airspace, Defendants shall promptly and consistent with the Court's Opinion and Order of June 24, 2014:

(a) give such Plaintiff notice of that determination;

(b) give such Plaintiff an explanation of the reasons for that determination sufficient to permit the Plaintiff to provide Defendants relevant information responsive to such reasons; and

(c) consider any such responsive information provided before completing the substantive reconsideration of such Plaintiff's DHS TRIP redress inquiry as ordered herein.

It's pretty clear the judge finds the whole no fly list situation to be ridiculous, and the fact that these people haven't been able to fly for years with no recourse problematic:

The Court notes the importance, complexity, and sensitivity of the issues raised and the remedies to be implemented in this matter preclude proceeding with undue haste. Nevertheless, in light of the fact that each Plaintiff has presumably been prevented from flying internationally and otherwise over United States airspace during the four years this matter has been pending, the Court concludes the time has come to resolve the claims of each Plaintiff on an individualized basis as soon as practicable.

It seems entirely likely that the DOJ and DHS will continue to try to stall and delay, but Judge Anna Brown makes it fairly clear in her ruling that she's not interested in stalling attempts and will not treat them kindly.

No Fly Order (PDF)No Fly Order (Text)

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Filed Under: dhs, doj, no fly list, tsdb
Companies: aclu

23 Comments

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Get off my cyber-lawn! (profile), 7 Oct 2014 @ 1:43pm

But they CAN fly
Just not on a commercial carrier or out of a commercial airport.

I hear Jim Bob's crop dusting and travel service is available as long as they aren't on his "No Flies" list (he's touchy about hygiene).
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That One Guy (profile), 7 Oct 2014 @ 1:47pm

Don't need a magic ball to see where this will head...
I imagine the primary 'defense' will be invoking the almighty 'National Security', and hoping the judge is easily enough swayed for that to work.

Now if the judge refuses to buy it, and actually pushes, then things could get interesting, though I'm not sure exactly what the judge could do if the DOJ/DHS refuses to cooperate.
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Anonymous Anonymous Coward, 7 Oct 2014 @ 1:48pm

Precedent?
Can we take this as a precedent that 'STFU judge, it's all about National Security, saving the children, because of the war on drugs and pedophiles (and a few things we aren't allowed to even mention)', no longer works?

Maybe they can use 'You look like you have Ebola' as their new excuse...oh wait!
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Anonymous Coward, 7 Oct 2014 @ 1:55pm

Hurray for Liberty!
And the paradigm of innocent until proven guilty...

No wait... the price our veterans have paid for this... we citizens are undeserving of their sacrifice and Bush amplified greatly by the likes of Obama are only here to ENSURE we PAY for not realizing what it is we HAD!
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Anonymous Coward, 7 Oct 2014 @ 1:57pm

Re: Don't need a magic ball to see where this will head...
I don't know that my suggestion has adequate legal basis for being as broad as I'd like, but I'd suggest starting with finding the offending DOJ/DHS employees to be in contempt of court for failing to do as the court ordered. I'd particularly like to see it be the case that the contempt consideration looks at whether the government made a good faith effort to obey the spirit of the court's order, rather than whether they complied with the letter of the order by just summarily declaring that the No Fly status looks good as-is based on shoddy/wrong evidence.
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Anonymous Coward, 7 Oct 2014 @ 1:58pm

Another grand government scam about a blacklist no one can know about who is on, why they are one, nor with any way to challenge. Been a lot of that lately in varying forms. This government in the US is one I don't recognize as having consent anymore. At least not from the voting public and that is the real issue. As long as it can be hidden, stonewalled, delayed from being fought in court, and delayed from being brought up to the public's attention, things can continue as they are.

Times are indeed changing and the government is going from because we said so to panic mode one step at a time, with a foot drag between each.
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Anonymous Coward, 7 Oct 2014 @ 2:04pm

Re:
That's a positive view... I predict more delays, and eventually some sort of 'pre-emptive appeal' possiblu followed by this judge retiring to some out of the way place or dying in some sort of accident. That's assuming they get to 'panic mode' fast enough.
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Digitari, 7 Oct 2014 @ 2:10pm

Re: Re:
Nah, nothing so overt, just a Tax Audit!!
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Anonymous Coward, 7 Oct 2014 @ 2:39pm

Re: Don't need a magic ball to see where this will head...
In a classic DOJ move, they'll ignore the courts and go on abusing their power and violating the constitution.
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Anonymous Coward, 7 Oct 2014 @ 3:05pm

Re: Don't need a magic ball to see where this will head...
The problem is that the Court doesn't have guns. However, wouldn't it be funny to have a bunch of civilians with guns walk into an Airport, demand the TSA to allow this person to pass pursuant to said court order, and get them on the plane?

If the local police show up, demand that they enforce the court order as well, or stand aside. Viva la revolution!
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Rekrul, 7 Oct 2014 @ 3:42pm

It seems entirely likely that the DOJ and DHS will continue to try to stall and delay, but Judge Anna Brown makes it fairly clear in her ruling that she's not interested in stalling attempts and will not treat them kindly.

Aww, isn't that cute? A judge actually thinks the government cares what the courts say.
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Andyroo, 7 Oct 2014 @ 4:07pm

Re:
Could the Judge not award crazy financial rewards if the DHS does not provide the evidence or reasoning behind the no fly listings.And even award more every time the claimants are not allowed to fly or fine them every day the claimants are on the list.
Surely the DHS has to abide by a judges ruling no matter what and if they do not the Judge has the power to punish them, and even demand prison sentences for the top executives.

I can see Judges all over the country demanding to know if the DHS is above the law if this Judge is ignored.
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GuyFromV, 7 Oct 2014 @ 6:34pm

Non-Executive armed agencies?
This may have a more obvious answer that I'm overlooking...but although I think the Legislative branch has a small armed agency which it can call upon which answers to them and not the Executive (I remember it being part of the Army, yet separate from the USAF hierarchy..?). But what about the Judiciary...does it have any command or control over an armed agency that answers to it alone? Or is it supposed to be assumed that the Executive provides enforcement for the Judiciary as "in theory" there shouldn't be a disconnect as the chain of responsibility and subservience? Because in reality, they obviously work at cross-purposes in scenarios such as this and seems short-sighted to NOT have Judiciary armed agents. I can see the DoJ should be one whole extension of the court's will, but as evidenced lately...two branches of the US government are sorely lacking in firepower and brawn to back up their will when it collides with the will of the almighty Executive branch.
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Anonymous Coward, 7 Oct 2014 @ 6:56pm

Re: Re:
Yes, but he should target the Airlines, not the DHS. The DHS would refuse to pay and just say OMG terrorists.

If the judge were to order the names stricken from the no-fly list and forbid them from being re-added without his permission. He could fine the airlines $250,000 to each plaintiff each time an airline refuses to let one of them fly, then something would likely happen. The airlines have to pay, or the plaintiffs could start ceasing assets and auctioning them off.
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That One Guy (profile), 7 Oct 2014 @ 7:10pm

Re: Re:
The judge can award whatever they want, enforcing it is another matter, especially given one of the parties is the gorram DOJ. After all, who do you take the matter to if the DOJ refuses to comply? Another court, who the DOJ will proceed to also ignore?

That said I'd expect stonewalling and deflection rather than outright defiance and refusal, as while any number of government agencies have demonstrated that they believe themselves to be above the law, it's in their best interest to keep it 'unofficial' as long as possible, so they and the rest of the government can keep pretending that everything is just fine and nothing needs investigation or fixing.
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Anonymous Coward, 7 Oct 2014 @ 7:34pm

Frank Herbert had it right.
In "The Whipping Star", there was a Bureau of Sabotage that was an independent branch whose task was to screw up the government when it got out of hand, to keep the abuses to a minimum. I wish we had that. Jorj, where are you when we need you?
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Coyne Tibbets (profile), 7 Oct 2014 @ 10:15pm

Tilting at windmills
I don't think the government will delay this time. They'll take the people off the list, inform them of that, and the case will be closed.

Then the government will add the plaintiffs back onto the list (or onto another list, since the government has many of these lists) and the plaintiffs will have to start from scratch.
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Bill Poser (profile), 8 Oct 2014 @ 12:18am

Re: Re: Don't need a magic ball to see where this will head...
Actually, federal courts do have guns. They can use federal marshalls to enforce their decisions, and federal marshalls are most certainly armed.
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David, 8 Oct 2014 @ 1:58am

Re: Don't need a magic ball to see where this will head...
Oh, there is a lot the judge can do if the DOJ refuses to cooperate. Like get fired.
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David, 8 Oct 2014 @ 2:08am

And now for something completely different
On request of Geena Davis, Jeff Goldblum has been put on the no-fly list.
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Anonymous Coward, 8 Oct 2014 @ 4:14am

Re: Re: Re: Don't need a magic ball to see where this will head...
U.S. Marshals Service belongs to DoJ.
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Khaim (profile), 8 Oct 2014 @ 9:42am

Re: Re: Re: Re: Don't need a magic ball to see where this will head...
The DoJ derives its authority from the courts. If they defy a court order the whole justice system comes crashing down.

Barring a complete and explicit transition to dictatorship, this isn't going to happen.
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John Fenderson (profile), 8 Oct 2014 @ 10:43am

Re: Re: Re: Re: Re: Don't need a magic ball to see where this will head...
I think I know what you're trying to say here, but technically the DoJ does not derive it's authority from the courts. The DoJ is part of the executive branch, the courts are part of the judicial. So, while the courts are supposed to be a check on the actions of the DoJ, the DoJ actually derives it's authority from the executive branch.

The legislative branch writes the laws that the DoJ helps to enforce, so all three branches work together in this effort (and are supposed to be a check for each other), but none of them derive their authority from the other.
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