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One Strike Against No Fly List; More Scrutiny To Come
New submitter MickyTheIdiot writes "The Jurist reports: 'A judge for the U.S. District Court for the District of Oregon ruled Wednesday (PDF) that those placed on the U.S. government's no-fly list have 'a constitutionally-protected liberty interest in traveling internationally by air, which is affected by being placed on the No Fly List.' The plaintiffs in the case are 13 U.S. citizens who were denied boarding on flights over U.S. airspace after January 2009.' Judge Anna Brown hasn't ruled on the constitutionality of the No Fly List yet, and has instructed the attorneys involved to present a roadmap for deciding the remaining issues. However, she has acknowledged that the No Fly List is a major burden to those on the list and they have the right to get that status reviewed."
At the very least, someone on the No-Fly list should be allowed to fly if they pay for a second seat and an armed government agent to sit behind them the whole flight.
It seems like if the increased screening actually worked a no-fly list is rather pointless... I mean that should catch any weapons of power enough to do anything, right? And if you simply don't want them entering the U.S. well that's what customs is for.
"There is more worth loving than we have strength to love." - Brian Jay Stanley
There are a lot of people coming in here, saying "about time" or something similar. What this attitude fails to incorporate is that the judicial system isn't concerned with unjust policies until they actually create injustice. And even then, an actual judge has to be less terrible than those that created the policies in the first place.
It takes a long time, and is a natural component of how checks and balances work in the US. It's not perfect, and sometimes the bad comes from congress faster than it can be addressed, but this is how things are supposed to work.
Besides trying to fly?
I believe I can fly, I believe I can touch the sky....
From the article:
Judge Anna Brown has not concluded whether the government's use of the no-fly list violated the plaintiffss constitutional rights to due process, stating in her opinion that, "the court is not yet able to resolve on the current record whether the judicial-review process is a sufficient, post-deprivation process under the United States Constitution." Brown has given both parties till September 9 to file a joint status report setting out their recommendation as to the most effective process to ensure that the court may come to a conclusion on the remaining issues
So there are still some big issues to resolve, before the practically inevitable appeals begin.
There will be some tough issues to work through since no doubt some of the evidence in individual cases is classified. Still, there should be some sort of process to have information in one's favor considered. Both sides have a point.
much of left-wing thought is a kind of playing with fire by people who don't even know that fire is hot - George Orwell
Tell us, misleadingly, how the Constitution doesn't specifically mention the right to travel, and then sleazily recast this into the context of coercion of private corporations. You've done it a hundred times before, so get to it.
"They were pure niggers." – Noam Chomsky
If the government decides that someone is a threat such that they shouldn't be allowed to fly, then they should be arrested and tried for whatever crimes they're accused of.
If they haven't committed a crime and are simply guilty by association, then they are being punished without a trial. Not being able to fly is a very strong punishment.
Of course not. It would without doubt compromise National Security if the secret lists were known. I mean, think about it - they would have to justify the names, and risk losing face. That's always a National Security issue.
No, you'll never get me up in one of these again. Cause what goes up, must come down.
Does the no-fly list make it illegal for the person on the list to fly, or illegal for a common carrier to carry them, or some other thing like they can't enter the controlled space at the airport? I could do the research but maybe someone who knows can explain it much better than the legalese in the law, and I'm not even sure if the relevant laws aren't in that crazy "secret law" category that seems to show up when the TSA is mentioned.
One part that is concerning to me, beyond the constitutional issues, is that even if one accepts that it is necessary for safety to have a list of people who should be subjected to additional scrutiny prior to flight, that suspect person can't be cleared as "safe to fly" with essentially unlimited invasive screening by the TSA. Which means either (a) the security measures are easily bypassed even when a person is targeted for extreme scrutiny or (b) the no fly list actually serves a policing or political function, that is, to locate / harass / intimidate / prevent the free travel of / etc. of people who manage to make it on the list. I'm guessing it is the latter, which is depressing, but not surprising. Abuse of power seems to be an unavoidable part of giving people power.
I believed I could fly
I believed I could touch the sky
I thought about it every night and day
Just board a plane and fly away
I believed I could soar
Now agents are running through that open door
I believed I could fly
I believed I could fly
I believed I could fly
There is no Right to Drive in the US, where driving is a rather a privilege.
Although it's really more like:
I shot for the sky
I’m stuck on the ground
So why do I try, I know I’m gonna fall down
I thought I could fly, so why did I drown?
I'll never know why it’s coming down, down, down.
Oh I am going down, down, down
Can’t find another way around
And I don’t want to hear the sound, of losing what I never found.
at least for distances like from SF to LA.
The TSA wants to set up airport levels of security at train stations as well. It is just a matter of time. Heck, they tried to do that kind of security at bus terminals as well, but the bus companies really threw a fit and bitched to the proper congress critters and got that rule proposal killed and buried.
I'm just waiting for screening checkpoints along interstate highways every 20-50 miles or so. That ought to make life real fun.
They haven't done permanent checkpoints, but the TSA has been known to hit the highways.
Oh, and, your papers, tovarisch.
A right to travel implies that you may also choose your means of transport. Because, well, why stop at planes? Bar them from trains, busses or using their own car. If we now just break their legs they can have all the right to travel they want to, but can't use it.
It's a bit like getting the right to free speech and having your mouth glued shut. You may speak... if you find a way to. What value is in a right you cannot execute because the means to use it are taken from you?
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
http://en.wikipedia.org/wiki/Visible_Intermodal_Prevention_and_Response_team
"Wants to" is, at this point, a foregone conclusion.
An enigma, wrapped in a riddle, shrouded in bacon and cheese
There is no Right to Drive in the US, where driving is a rather a privilege.
In the Articles of Confederation, the following right is explicitly granted:
"the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce"
-- Articles of Confederation and Perpetual Union, Article IV, Paragraph 1
This document is still technically a part of the United States Code, although I haven't seen it cited as rationale in a legal argument for preventing the "no fly list". This is also one of the few individual freedoms explicitly mentioned in founding documents that is not a part of the Constitution of 1787. As to if this document still holds legal weight could also be questioned, I suppose, but technically all the Constitution of 1787 did was update this document. It certainly puts such notions of "it is a privilege not a right" legal theories into serious question.
In other words, the right to travel is an explicitly granted constitutional right and not something that can be extrapolated more loosely from things like the 9th Amendment (which I think this quote amply shows something previously thought of as an individual right not to be eliminated by its absence in other legal documents).
You might be able to argue that the internal combustion engine itself is regulated and requires an operator's permit, although that is a real stretch. States simply can't prohibit either entry or exit of other otherwise legal citizens of other states and it can be assumed that includes travel internal to that state too.
or what about useing the Israeli airport security system?
Good luck driving from LA to Honolulu. Let us know how that works out for you.
Il n'y a pas de Planet B.
At worst, being on the list should mean you're subject to a full search of your luggage and person to make sure you're not carrying explosives or weapons. Not that you can't fly at all.
I do not fail; I succeed at finding out what does not work.
Can't the airlines reject anybody on the no-fly list since the airlines are a private corporation? They're not violating any discrimination laws. How is this any different from a restaurant that "Reserves the right to refuse service"?
If Delta won't fly people on the do not fly list, go find an airline that will fly them.
Jump out of the window. If you miss the ground, then you're not on the list.
At least we can still detain people indefinitely without charging them or a trial, and assassinate american citizens and foreigners using radio controlled missiles, amirite?
There is no Right to Drive in the US, where driving is a rather a privilege.
You don't have to be the operator of the vehicle tpo travel by it. Being a passenger in a card does not require any special privilege or license, and could be argued is a right.
I'm just waiting for screening checkpoints along interstate highways every 20-50 miles or so. That ought to make life real fun.
Haven't traveled the highways around the Mexican border recently, have you?
And the worms ate into his brain.
There is no Right to Drive in the US, where driving is a rather a privilege.
The privilege of operating a motor vehicle on public roads, and the right to be a passenger in one are VERY VERY different things.
Similiarly I don't think anyone is especially outraged that the government restricts who can fly a plane. (That would be anyone without a pilots license in good standing, which is most people, including me.) The contentious issue is restricting who can be a passenger in one.
I cannot see how a "right to travel" does not imply a "right to fly". What authority give the government the right to limit particular forms of travel? Can they ban walking backwards?
Afraid not. The US Constitution is a full replacement for the Articles of Confederation, and why they opted to do full replacement vs a (long) series of amendments... is a much lengthier discussion.
The Articles of Confederation have as much legal weight today as the Constitution of the Confederate States of America, which is the same as the Federalist, Anti-Federalist papers, as well as the ratification debate notes... interesting insights into the thinking & deliberations at the time.
Help Brendan pay off his student loans
I would like to know how I can drive to Hawaii? Or how I can drive to Alaska without the permission of a foreign government.
The real "Libtards" are the Libertarians!
No? So, take a boat.
Have gnu, will travel.
You can board the ferry at Bellingham, washington and get off at Alaska without ever going through Canadian customs.
You can't drive to Hawaii that I know of but you can take a cruise there from the mainland.
Not sure what your real point was though.
"There is more worth loving than we have strength to love." - Brian Jay Stanley
This document is still technically a part of the United States Code, although I haven't seen it cited as rationale in a legal argument for preventing the "no fly list". This is also one of the few individual freedoms explicitly mentioned in founding documents that is not a part of the Constitution of 1787. As to if this document still holds legal weight could also be questioned, I suppose, but technically all the Constitution of 1787 did was update this document. It certainly puts such notions of "it is a privilege not a right" legal theories into serious question.
No one argues that because the Articles of Confederation do not have the force of law. They were superseded by the US Constitution.
I'm just waiting for screening checkpoints along interstate highways every 20-50 miles or so. That ought to make life real fun.
Haven't traveled the highways around the Mexican border recently, have you?
That's not TSA, that's "border" patrol.
Where "around" = within 100 miles of any international border (not just the mexican)..
The opinion and order explains that in detail.
https://www.aclu.org/sites/default/files/assets/latif_v_holder_opinion_and_order.pdf
1. Right to Travel
Plaintiffs contend the government has deprived them of their protected liberty interest in travel. In Kent v. Dulles, 357 U.S. 116 (1958), the Supreme Court held “[t]he right to travel is part of the ‘liberty’ of which the citizen cannot be deprived without due process of law under the Fifth Amendment.” Id. at 125.
As noted by the Ninth Circuit, “the [Supreme] Court has consistently treated the right to international travel as a liberty interest that is protected by the Due Process Clause of the Fifth Amendment.” DeNieva v. Reyes, 966 F.2d 480, 485 (9th Cir. 1992)(emphasis added)(citing Aptheker v. Sec’y of State, 378 U.S. 500, 505-08 (1964), and Califano v. Aznavorian, 439 U.S. 170, 176 (1978)). In DeNieva the plaintiff brought a claim under 42 U.S.C. 1983 after her passport was seized by government officials. The Ninth Circuit held the plaintiff had a right under the Fifth Amendment to travel internationally, and that right could not be deprived without a post-deprivation hearing. 966 F.2d. at 485.
Although Defendants do not dispute the United States Constitution affords procedural due-process protection to an individual’s liberty interest in travel, Defendants rely heavily on Gilmore v. Gonzales, 435 F.3d 1125 (9th Cir. 2006), and Green v. Transp. Sec. Admin., 351 F. Supp. 2d 1119 (W.D. Wash. 2005), to support their position that there is not a constitutional right to travel by airplane or to access the most convenient form of travel. In Gilmore the plaintiff challenged the government’s airline passenger identification policy as unconstitutional, alleging the policy violated his right to travel because he could not travel by commercial airline without presenting identification. The Ninth Circuit rejected plaintiff’s argument because “the Constitution does not guarantee the right to travel by any particular form of transportation.” 435 F.3d at 1136. The court also found the “burden” imposed by the challenged identification policy was not unreasonable. Id. at 1137. The plaintiffs in Green alleged they were innocent passengers without links to terrorist activity, but they had names similar or identical to names on the No Fly List and had been mistakenly identified by airport personnel as the individuals whose names appeared on that list. As a result, the plaintiffs were subjected to enhanced security screening. None of the plaintiffs ever missed a flight or were subjected to heightened screening for more than an hour. 351 F. Supp. 2d at 1122. The court denied the plaintiffs’ procedural due-process claim and held the plaintiffs did not have a right to travel throughout the United States “without any impediments whatsoever.” Id. at 1130.
The Court finds Green and Gilmore are distinguishable from this case for a number of reasons. These cases involve burdens on the right to interstate travel as opposed to international travel. 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. In Ibrahim v. Department of Homeland Security the Northern District of California recently rejected an argument similar to the one made by Defendants here:
While the Constitution does not ordinarily guarantee the right to travel by any particular form of transportation
I was wondering how many of them were named Mohammed.
http://www.phdcomics.com/comics/archive.php?comicid=1244
I don't know; 'shall not be infringed' is a rather strong standard to me.
Oxford: act so as to limit or undermine (something); encroach on:
For example I think the closing of the NFA registry is unconstitutional, though given that 'due process of law' is a reason to remove rights from criminals, I'm okay with background checks.
I don't read AC A human right
Good luck driving from LA to Honolulu. Let us know how that works out for you.
http://yachtpals.com/files/news/boat-car-aquada.jpg
They see me rollin' they hatin...
There is also the "life, liberty and pursuit of happiness" clause in the declaration of independence. For many people long distance travel is required for their jobs, which provide income that allows a "pursuit of happiness". For others the travel itself is part of the pursuit of happiness.
Since air travel is in may instances the only practical way to do long distance travel, preventing someone from traveling by air reduces their right to travel and thereby their right to pursue happiness.
People may wish to claim that travel is a "privilege", but that sort of argument would allow the government to take pretty much anything except food, shelter, and those rights that are explicitly granted, and such an interpretation seems at odds with the intent of the constitution.
...In other words, the right to travel is an explicitly granted constitutional right...
...paupers, vagabonds... excepted...
Restrictions apply
“He’s not deformed, he’s just drunk!”
I wish I could fly way up to the sky but I can't,
You can,
I can't!
I wish I could see what folks see in me but I can't,
You can,
I can't!
Look, Orville,
Yes?
Nothing that you can say
Will change how I feel today:
I know that we'll never part;
Now hear what I'm saying, Orville?
Yes?
Who is your very best friend?
You are.
I'm gonna help you mend your broken heart.
Thank you.
This document is still technically a part of the United States Code,
No, the Articles of Confederation are not part of the US Code. They were superseded by the current US Constitution. They are not law in any way shape or form, except perhaps as an occasional interpretive guide to the current constitution when in court cases we try to compare it to the current document to argue that the new language means something different.
Repeat: The Articles of Confederation are not part of the US Code.
(But what would I know? I'm just a law prof who has taught constitutional law...)
I have a blog.
Basically the government's position is they can restrict anyone from being able to take a commercial flight for any reason at all or no reason, with no process whatsoever, and that's OK because the restricted person could walk instead.
The US government does not restrict who can fly a plane quite as severely as you appear to think. Under FAA Part 103, no license, formal training, or vehicle certification is required to fly an ultralight (a type which is defined therein). Ultralights often look like a guy hanging under a parachute with a fan strapped to his back, but not all of them do. Some of them look like very small traditional planes. There are even efforts to develop workable ultralight helicopters.
There are common sense limitations on where you can fly, daytime only, visibility restrictions, right of way must be yielded to "real" aircraft and powered ultralights yield to unpowered ultralights, and demands that you exercise due care and vigilance as detailed, You cannot carry any other person with you.
There is no obvious exclusion of people on any no-fly list participating in flying ultralights. But I am not claiming this gives them a practical way of traveling significant distances in the air, and speed is limited to basically highway speed.
Here's one: require that Voter Registrars in the United States submit the name of voters to the keepers of the No-Fly list, and revoke the voter registration of anyone on that list. If someone isn't "good enough" to fly in this country, they aren't "good enough" to vote. In this way, the people get notification they are on the no-fly list. The right to fly and the right to vote are equal, yes?
The privilege of operating a motor vehicle on public roads, and the right to be a passenger in one are VERY VERY different things.
As concerns the powers granted to the federal government by the US constitution, they are not. They are both reserved to the states, or to the people. This is precisely why we do not have a federal driver's license program, but one for each state.
Do you enjoy sucking government cock?
cheap labor conservatives - they want to keep you hungry enough to be thankful for minimum wage.
Until the administration decides that the no fly list applies to cruises also.
Right, that'll happen the day after a Carnival ship sails into the pentagon...
My point is that the administration's claim that driving is an alternative method of transportation which people on the no-fly list can use is not even valid for interstate travel, let alone international travel.
Although as I said I disagree with the driving thing I'm really just being pedantic, I do totally agree with your main point. It's really unreasonable to restrict some people from flying, especially without recourse or stated grounds...
"There is more worth loving than we have strength to love." - Brian Jay Stanley
actually authoritarian-apologist nonsense.
Exsqueeze me?
I'm against the no-fly list. I'm against the TSA entirely. Were it up to be they'd issue every passenger a tranq gun and a bat and let anyone fly with anything including live goats and hand grenades. The NSA already read what everyone was planning to do on the flight anyway so they can just slip a mickey in the drinks of the actual terrorists on board, if any.
Too bad you are too dense to understand what I said, every other responder seemed to grasp what I meant.
"There is more worth loving than we have strength to love." - Brian Jay Stanley
States simply can't prohibit either entry or exit of other otherwise legal citizens of other states and it can be assumed that includes travel internal to that state too.
They can't prohibit it; but they can make it difficult. For example, by not providing any maintained accessible roads to drive a car on, and at the same time: prohibiting any private entities from creating or maintaining a road across state lines.
There is no constitutional requirement that states facilitate entry or exit, by enabling, or allowing certain kinds of contraptions.
States don't have to allow people to launch or land airplanes; and if they do, they may require qualifications or the meeting of regulations, before one is allowed to board or pilot one, and about what is allowed to be on a plane when it is launched or landed.
Agent Smith? Is that you?
That's true.
Although, it not really any different to the fact that you don't need a drivers license to operate a bicycle, and most states don't require one even for an electric one provided its sufficiently low power.
A "no-fly list" that "cannot be challenged by court of law" is obviously the Hallmark Of Tyranny. If the government has reason to embargo somebody from flying, they must produce evidence supporting this decision, if challenged in court.
If they cannot produce said intelligence, person must be removed from list. THAT IS ALMOST THE FUCKING DEFINITION OF "rule of law". You Americans are incredibly fucking stupid.
Must read: "If they cannot produce said PROOF". I know that a lot of these people came onto these lists based on some flimsy COMINT, SIGINT, rumors, software bugs, operator laziness, naming confusions and pure malice. THAT is why "rule of law" allows citizens to demand PROOF from the government. We simply cannot trust them to work properly and ethically all the time.
Of course the American Tsheka will claim that "we cannot possibly divulge our proofs, as that would betray sources&methods, so there cannot be a review of a no-fly list". It is up to you to decide whether you want to tolerate the Growth Of The Tsheka, my dear Americans.
http://de.wikipedia.org/wiki/Tscheka
I have never been gone.
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
deneme deneme
This is surprising. Usually nothing is classified as a right via the constitution. I figured they'd say you're perfectly free to get a rowboat and row your ass accross to Canada to fly somewhere. That or just row across the entire ocean.
In the Articles of Confederation, the following right is explicitly granted:
"the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce"
-- Articles of Confederation and Perpetual Union, Article IV, Paragraph 1
That could quite easily be interpreted to mean that those who are poor could be excepted from the right to freely travel. At which point it becomes a question of who's definition of poor do you want to use. The 99%?
No one argues that because the Articles of Confederation do not have the force of law. They were superseded by the US Constitution.
Here is a point to make about this issue though:
If the U.S. Constitution of 1787 superseded the Articles of Confederation, does that imply this particular basic right, an enumerated right that does not exist in that constitution including subsequent amendments, has been repealed and thus void from Constitutional Law?
My argument is that this was though of enough that the writers of the Articles of Confederation thought to explicitly include it in that document. The Constitution of 1787 simply doesn't address this issue other than in the 9th Amendment which basically points out "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." I would contend this specific previously enumerated right would be one of those rights that the Constitution explicitly did not intend to destroy.
I'll admit this is a bit of a stretch, but at the same time it shows that the right to travel freely is a basic right. The Constitution does provide for laws regarding immigration, naturalization, and for controlling the federal border with other nations outside of the union of states.... but it doesn't provide any constitutional authority for travel within or between states. If a court was to grant that this indeed is a part of the constitutional law of America, it really doesn't open any sort of substantial Pandora's box as the scope of this individual right is quite limited, and the rest of the Articles of Confederation (with very few exceptions) are clearly replicated or replaced with other provisions in the Constitution of 1787.