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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.
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.
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.
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.
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.
These problems were discussed in detail in the Opinion and Order.
https://www.aclu.org/sites/default/files/assets/latif_v_holder_opinion_and_order.pdf
Many of these Plaintiffs cannot travel overseas by any way other than air because such journeys by boat or by land would be cost-prohibitive, would be time-consuming to a degree that Plaintiffs could not take the necessary time off from work, or would put Plaintiffs at risk of interrogation and detention by foreign authorities. In addition, some Plaintiffs are not physically well enough to endure such infeasible modes of travel.
Amayan Latif: Latif is a United States Marine Corps veteran and lives in Stone Mountain, Georgia, with his wife and children. Between November 2008 and April 2010 Latif and his family were living in Egypt. In April 2010 Latif and his family attempted to return to the United States. Latif was not allowed to board the first leg of their flight from Cairo to Madrid. One month later Latif was questioned by FBI agents and told he was on the No Fly List. Because he was unable to board a flight to the United States, Latif’s United States veteran disability benefits were reduced from $899.00 per month to zero because he could not attend the scheduled evaluations required to continue his benefits. In August 2010 Latif returned home after the United States government granted him a “one-time waiver” to fly to the United States. Because he cannot fly, Latif is unable to travel from the United States to Egypt to resume studies or to Saudi Arabia to perform a hajj, a religious pilgrimage and Islamic obligation.