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Federal Judge Rules US No-fly List Violates Constitution
New submitter dmitrygr sends this news from Reuters: The U.S. government's no-fly list banning people accused of links to terrorism from commercial flights violates their constitutional rights because it gives them no meaningful way to contest that decision, a federal judge ruled on Tuesday. ... "The court concludes international travel is not a mere convenience or luxury in this modern world. Indeed, for many international travel is a necessary aspect of liberties sacred to members of a free society," [U.S. District Judge Anna Brown] wrote in her 65-page ruling (PDF). "Accordingly, on this record the court concludes plaintiff's inclusion on the no-fly list constitutes a significant deprivation of their liberty interests in international travel," Brown said.
Because the Bill of Rights, as written, is not a list of rights granted but, rather, a list of prohibitions on the new government.
There was a huge debate about listing any rights because it was thought that no list could be complete. The preamble to the Bill of Rights identifies why it exists:
THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.
Notice the important statement, "...further declaratory and restrictive clauses should be added..."
"Congress shall make no law..."
"...the right of the people to keep and bear Arms, shall not be infringed."
"No soldier shall..."
"...shall not be violated..."
These are all prohibitions on the newly formed government. A compromise was reached that required the inclusion of the 9th amendment, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." This compromise is why all "retained" rights aren't listed and what allowed any rights to be listed; many who were negotiating the Bill of Rights were rightly fearful that the list would be seen as a "full" list of rights of the people.
The U.S. Constitution, as designed, granted powers from the people to the government. The compromise found within the Bill of Rights essentially listed a number of prohibitions so the new government absolutely knew that they could in no way interfere with this core set of rights.
Unfortunately, we've reached a point where many people believe that the U.S. Constitution confers rights from the government to the citizens rather than it's original purpose of conferring powers to the government from the people.
It's okay having a no fly list but not having a way to appeal being on it is an abomination.
So close, but so so far away. Let me help you: "No person shall ... be deprived of life, liberty, or property, without due process of law"
The definition of due process is beyond the scope of a /. post, but at a minimum it would require the right to be confronted with the evidence against you and a review by a judge and/or jury of your peers. Some bureaucrat in the national security apparatus adding your name to a list does not rise to the level of due process under any definition.
Oh, and guess what? The list is totally pointless anyway. Suspected terrorists from other countries could already be denied entry into the United States by the simple exercise of refusing to grant them a visa. Last time I checked you can't board an aircraft to the United States without valid travel documents and the appropriate visas.
I want peace on earth and goodwill toward man.
We are the United States Government! We don't do that sort of thing.
Judge Anna Brown
Think I'm kidding? How about that oh-so-convenient-but-WTF case where a witness to a case concerning the *legality of the No Fly List* was put on the No Fly list while the DOJ lied about the facts about the blocking, delaying her testimony [1].
The corruption in Washington has been festering for at least a dozen years. Forget Skynet - this is the dystopian menace that is going to ruin our world.
[1] https://www.techdirt.com/artic...
Make sure everyone's vote counts: Verified Voting
The difference it will make, though, isn't that they'll get to fly. At best, they'll get to contest their presence on the list. And at that point, the government will pull out the same argument that it uses for those it has labelled sexual offenders, and which (barely) has already passed SCOTUS scrutiny: Presence on a list "is not punishment", and is within the "interests" of the government. It may lead to a situation where any law that says you can't fly comes down. However, if the airlines choose (and they will suddenly so choose) to not let those on the list fly, that's not the government's problem or responsibility. You know, same as it isn't if presence on a list causes someone to have to move because they're too close to a park or a school, or to die subject to vigilante violence. Your problem. Not theirs. So no flying. But hey, they'll get to spend a bunch in court to find that out. It's good for the economy when the lawyers buy new toys, you know.
The judge in this case, though, will be added to the no-fly list really soon.
Not likely. A federal judge walking around in public has extra powers, by virtue of being a peace officer; not only does a federal judge have the power to quickly write up an order requiring that they be allowed to board the plane, and the ability to issue immediate punitive legal actions for non-compliance, but these judges also have the power to make warrantless arrests under various conditions and are legally allowed to carry sidearms and other law enforcement tools with them, even onboard.
In short: the TSA is not likely to even joke about messing with federal judges.
Who do you think they are, the IRS? :)