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.

Comments

Awesome!

[spiritplumber]

Now let's hope that the ruling is respected. What are ways by which it couldn't be?

Re:Awesome!

[TechyImmigrant]

When the judge issues an arrest warrant for someone preventing someone boarding an airplane due to being on a no fly list, I'll believe it will make a difference.

Re:Awesome!

[phayes]

The judge's ruling will be challenged & until/unless it wins every appeal (all the way to the supreme court in all probability), the ruling changes nothing.

Sooo, until the ruling is definitively confirmed, nothing changes.

Re:Awesome!

[Nukenbar]

Any change to the law has to start with a lower court ruling somewhere.

Re:Awesome!

[Anonymous Coward]

Simple really. The no-fly list is ruled illegal, but will continue on. The feds are welcome to ignore such rulings. The judge in this case, though, will be added to the no-fly list really soon.

Re:Awesome!

[MPAndonee]

At least it's a start...

Imagine, if there was no dissenting voice anywhere, ever. Then there will be a lot less freedom, maybe a lot less /. as well.

Re:Awesome!

[Noxal]

You might want to go back to like 3rd grade civics where you learn about the separate branches of government.

Re:Awesome!

[MrBigInThePants]

Farcical bureaucratic process resulting in the same outcome at more expense in 3....2...1.....

Re:Awesome!

[Anonymous Coward]

You might want to open your eyes and look at how the world around you actually works.

Re:Awesome!

[sjames]

They add a system to contest the placement which just happens to take the rest of your life plus 1 day to make a ruling.

They thumb their noses at the court as usual.

They let you contest it so you get off of the no-fly list and on to the double secret lose your luggage, anal probe and audit every year list.

Re:Awesome!

[Immerman]

Truly. Though with all three branches beholden to the same small group of powerful interests, the benefit of that separation is not nearly so great as it once was. Though it does seem the Judicial branch is at least moderately less beholden than the others.

Re:Awesome!

[Anonymous Coward]

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.

Re:Awesome!

[Charliemopps]

Now let's hope that the ruling is respected. What are ways by which it couldn't be?

Stop policing it with government employees. Allow anyone to fly, then give the airlines API access to the list and tell them in a not-so-subtle way that they are responsible for anything that would happen should they allow any of those people on the plane.

Re: Awesome!

[Anonymous Coward]

The only thing the three branches are beholden to is the People. Everything that is wrong with the government is directly attributable to the People allowing it. Every day we don't start a bloody revolution is one more day for the Evil to dig it's claws in... Twenty years from now you'll wish we had revolted when the getting was good...

Re:Awesome!

[Darinbob]

However this ruling gives people who are on the no-fly list to sue to be taken off of it, as well as sue for damages (actual and punitive). It is even possible to win a judgement here before the supreme court gives a ruling, though appeals would be held up.

Re:Awesome!

[Khashishi]

In other words, it's just a few steps from changing everything.

Re:Awesome!

[nytes]

I predict that they will handle it the same way they handle airport security: Everyone is now on the no-fly list. You can apply to get a travel pass that will allow you to fly within a given window of time. You'll have to show the pass along with your passport to enter the terminal. Eventually, leaving your state or county will also require a pass.

I've been expecting this within the next ten years or so.

"Papers, please."

Re:Awesome!

[Bite The Pillow]

Who requests an arrest warrant?

Do judges just sit around reading the news, becoming outraged periodically, and issue arrest warrants?

I'm really curious how this process works.

Re:Awesome!

[Bite The Pillow]

The last time this came up in a big way, no one here could point to anything suggesting that flight is a necessary part of modern life, to the point that it is a constitutional right.

In fact, most people pointed to cases where travel was NOT a constitutional right.

So what will change is everyone here will now have a case to point to suggesting that the no-fly list is actually unconstitutional. Actually unconstitutional as opposed to obviously unconstitutional.

So the difference on slashdot is that people will have a case to point to, but still won't.

Re:Awesome!

[dreamchaser]

No, there are layers of Federal judiciary. This ruling came from a District Federal Court, not the SCOTUS.

Re:Awesome!

[LordLimecat]

People like to talk about how nasty the government is. But it seems like if theres ever a class of government official you really dont want to piss off-- no matter who you are or how much money you have-- its judges. Judges can make your life real difficult in very short order, and it doesnt really matter if you're the head of Microsoft.

Adding a judge to a no-fly list as retribution would be the start of a very entertaining saga.

Re:Awesome!

[lgw]

Thumbing one's nose at federal judges does not end well. It's one thing if it's a politically contentious issue that the judges themselves are divided on, but this is not such a case. If the community of federal judges feels slighted in their authority by some part of the administration, they can get very creative in making their displeasure known.

More likely this will just go through the normal appeals process, and nothing will change until the SCOTUS eventually gets to the case.

Re:Awesome!

[Krishnoid]

Let me get that down ... Anna Brown ... ok, the no-fly list is now one entry longer.

Re: Awesome!

[Anonymous Coward]

your AR-15 isn't going to do much against an Apache which can unleash pure hell that only a few people have even seen

And the Apache isn't going to do much when it can't fly because people with AR-15s have eliminated fuel, ammo, and maintenance depots and/or the means to resupply them, not to mention the non-trivial number of servicemen who walk away from their posts when the order is given to fire upon their countrymen.

Re:Awesome!

[mysidia]

the ruling changes nothing.

That's not really true. Within the region of the United States under the jurisdiction of the Oregon circuit, the order is in full effect and force immediately.

It may be appealed. In that case, the ruling is still in affect during appeal, unless the feds win a stay, which they only win if they are deemed likely to succeed in the appeal.

The feds could pull off something clever however ---- like: instead of appealing the ruling; they can outsource 'no fly list enforcement' to the discretion of 3rd parties.

For example: for people flying from outside the US into Oregon, well.... it won't be the US No-Fly-List. Everyone flying in will have to be routed in from an approved partner country who has their own fly list, which through international agreement includes all the items in the US no-fly-list.

As for people flying out..... again.... airlines will only be allowed to fly to approved partner countries, and the US will agree not to let anyone board a plane who is in the partner country's No-Fly list.

As for flights from other places in the US to places inside Oregon.... no problem: outside the court's juridsidction, US No-Fly-List still applies.

As for domestic flights from inside Oregon to other places in the US...... well the court ruling didn't fully address it, so no problem enforcing a US No-Fly List there.

Re:Awesome!

[mysidia]

Though it does seem the Judicial branch is at least moderately less beholden than the others.

They're not only moderately less beholden. It would be a major ethical scandal worthy of impeachment, for a Justice to be caught discussing their cases/rulings with politicians, lobbyists, or other representatives outside the court: there is an absolute requirement of unbiased objective interpretation of the law exclusively according to the principles of the law.

Re:Awesome!

[mysidia]

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? :)

Re:Awesome!

[rtb61]

Technically speaking, the game they were playing was not putting people on the nofly list but putting people's names on the no fly list. So it was not a particular individual that was banned from flying but a particular name that was banned from flying and if you happened to share that name you were also banned. So it makes that list a legal loop hole because no particular individual was banned but also far worse because many people were banned for no legal reason at all. Remember this no biometric data that is usually and normally used to identify people was ever used, no finger prints, no DNA and no photo. So it was all theatre and punitive punishment targeting particular individuals for largely political reasons and designed to be ramped up over time to create non-citizens or citizens without rights, basically all those persons considered to be enemies of the 1% as substantiated by it costing a lot of money to get your name off the list.

Re: Awesome!

[Desler]

Every day we don't start a bloody revolution is one more day for the Evil to dig it's claws in

What are you doing beyond whining? No one is gonna fight and die for an armchair general like you.

Re:Awesome!

[spiritplumber]

Capt. Vasili Borodin: I will live in Montana. And I will marry a round American woman and raise rabbits, and she will cook them for me. And I will have a pickup truck... maybe even a "recreational vehicle." And drive from state to state. Do they let you do that?

Captain Ramius: I suppose.

Capt. Vasili Borodin: No papers?

Captain Ramius: No papers, state to state.

Capt. Vasili Borodin: Well then, in winter I will live in... Arizona. Actually, I think I will need two wives.

Captain Ramius: Oh, at least.

Re:Awesome!

[PopeRatzo]

Not all, but almost.

This kind of law does need to go through the lower courts though.

There is a pretty small window of opportunity to challenge these kind of laws though. They already have secret courts where evidence does not need to be shown to the defendant. And I'm guessing that the government will fight any effort on the part of the person on the no-fly list to see the evidence against them.

The notion that evidence in a trial such as this could be classified is abhorrent. It violates everything underpinning our legal system.

I don't understand completely how this all has gone so far so fast. Just 15 years ago, this all would have been unthinkable.

Re:Awesome!

[Anonymous Coward]

Any change to the law has to start with a lower court ruling somewhere.

No no no a thousand times no.

Congress changes the law. The courts merely decide if a crime was actually committed (and when there are conflicting laws, which one takes priority).

"Well what about constitutionality of a law?"

That falls under the "conflicting laws" thing I just mentioned.

Re:Awesome!

[sjames]

Regular citizens come to a bad end if they ignore the courts. It's becoming SOP for the feds.

Re:Awesome!

[PopeRatzo]

APK, that night at the Indiana toll road rest stop was a mistake for both of us. Let's face it. I was drunk, and you were needy and we just let it get out of hand.

As much as I enjoyed stretching you out over that grimy sink, it just can't happen again, no matter how much you want it.

Better we cut it off now before it destroys us. As much as I am flattered by your continued attention (some would say, "stalking"), I'm not willing to go through the pain of another round of antibiotics and lice treatments..

Re:Awesome!

[Anonymous Coward]

Are you on-topic, here, APK?

Dear gods, do you even understand the meaning of the word 'hypocrisy'? You provide an off-topic link to you calling someone out for being off-topic.
It's clear that you don't treat communication as an exchange of ideas and information so much as a competition that you seek to 'win'.

It's ... well, frankly it's kind of disturbing and a little pitiable.

Re:Awesome!

[EuclideanSilence]

If federal law enforcement upset the judiciary, who would they go to for warrants? It not like federal law enforcement can just write their own warrants, that would be preposterous.

(PS also posting to undo accidental down-mod, apologies)

Re:Awesome!

[mysidia]

The police are constitutionally not allowed to arrest a congressman, because if they could, then the executive branch could

They can; a congressman can still be arrested if prosecuted for a crime. Williamson v. United States (1908). The exclusion of congressmen from arrest applies to Civil Arrest only (basically.... incarceration of a defendant being sued in a civil action; detainment of a person by lawful authority at request of the plaintiff in order to answer a civil demand, commonly used against debtors), based on the context of the original English concept of parliamentary privilege, and not other civil processes, and this privilege is only enjoyed while congress is in session.

Civil Arrests are essentially a medieval anachronism no longer done in the united states, although they were used in the 1800s, so the constitutional exclusion from arrest basically has no affect.

Re:Awesome!

[zippthorne]

With? the constitution does not even address what is "necessary part of modern (or otherwise) life." It addresses a short list of things that the government is allowed to do in carrying out its duties, and a list of what those duties are, and list of inalienable rights that we want to be doubly sure the government doesn't even try to do. Many of the items on that list are far from necessary to survive, although violations are burdensome.

If the constitution is in force and respected, we don't need to prove that we need to fly. The government needs to prove that it has a need to restrict flying, and that it has the authority to do so. Please see, for instance, Amendments 9 and 10.

Re:Awesome!

[7-Vodka]

The last time this came up in a big way, no one here could point to anything suggesting that flight is a necessary part of modern life, to the point that it is a constitutional right.

In fact, most people pointed to cases where travel was NOT a constitutional right.

So what will change is everyone here will now have a case to point to suggesting that the no-fly list is actually unconstitutional. Actually unconstitutional as opposed to obviously unconstitutional.

So the difference on slashdot is that people will have a case to point to, but still won't.

What the fuck?

Have you ever read the constitution?

First of all you have it all backwards my retarded son.

The constitution allows the federal government to be granted certain rights by the people to do some very specific things. The federal government is PROHIBITED from doing anything not specifically listed.

I quoteth:

Tenth Amendment
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Please for the love of the spaghetti monster, where in the constitution is the federal government given the power to restrict people's travel liberties without due process? Oh that's right, it ain't there so they don't have it.

Fifth Amendment
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Oh and the constitution does not have to list every right that belongs to the people. They belong to the people, listed on a piece of paper or not and are not granted by the government. The government is granted it's rights by the people, not the other way around.

Ninth Amendment
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

So to the parent post and those who modded it up: SuuuUUUuuuck IiiiiiiiT.

Re:Awesome!

[pjt33]

The courts decide what the law means, as well. That sometimes ends up in effect changing it, although from a strict legal point of view it isn't.

Re:Awesome!

[electrosoccertux]

well you see, they're enemy combatants, they don't have constitutional rights. that's the whole thing about constitutional rights. we decide if you have them. that's why we're the government.

Re:Awesome!

[ShakaUVM]

>I don't understand completely how this all has gone so far so fast. Just 15 years ago, this all would have been unthinkable.

The FISA court has been around a lot longer than 15 years. It was founded in 1978, and has been a civil rights issue for those of us paying attention for a long time now.

The American legal system, as you say, is based on being able to confront your accuser in a criminal case (6th Amendment), to examine evidence held against you, and that trials in abstentia are a violation of our natural rights.

So yeah, Pope, I agree with you for once.

Re:Awesome!

[qbast]

Of course I do. They are completely ineffective anyway and setting their underwear at least provides some entertainment during boring flight.

Re:Awesome!

[serviscope_minor]

where in the constitution is the federal government given the power to restrict people's travel liberties without due process?

Well they might uh.... you know cross state lines and er... sell something so Interstate Commerce!

The nice thing is of course that they only might need to engage in commerce, not actually do it. Or in fact they might be flying within the state and then commerce with someome who has come in from out of state too. So still interstate commerce!

And in fact even if everyone stays within the state hte fact that you're selling something to someone means they might not have purchased from across state lines too.

In fact even if you sit in a cardboard box in a hole that means you're actively failing to buy from out of state so that's covered by interstate commerce too.

Re:Awesome!

[serviscope_minor]

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.

My god they're street judges! That's only cool if they have a cool hat and never, ever show their eyes.

Prepare to be judged!

Re:Awesome!

[phayes]

On matters where national security & constitutionality collide, stays are systematically delivered by the appellate courts so again, until every higher court has exhausted appeals, the ruling changes nothing.

Re:Awesome!

[phayes]

Just as you are just a few steps from committing mass murder...

Re:Awesome!

[knightar]

Judges gets requests from Police or Prosecutors, There are times a Judge will sign an arrest warrant if a defendant has not shown up in their court or refuses to appear.

Re:Awesome!

[Monoman]

How is a PUBLIC list of PUBLICLY TRIED AND CONVICTED sexual offenders the same as a SECRET list of people who MAY OR MAY not have done anything wrong the same? Isn't one is a list of public facts while the other is a secret list of accusations.

Re:Awesome!

[Talderas]

Flying within your own state might be one of the few ways in which someone can engage in commerce that isn't classified as interstate and that's because the product is not readily fungible. On the other hand, if I buy grain from a farmer next door or even grow it myself, I'm still participating in interstate commerce and there subject to any and all regulations governing interstate commerce.

Re:Awesome!

[serviscope_minor]

Given that they seem to assume that even eating your own grain is interstate commerce, (it is not of course by any sane definition) then I don't see it's a stretch that flying within state is interstate commerce.

I mean the plane may have come from oput of state before. Or the pilot or the fuel. Or you might interact with someone who took part in interstate commerce.

Basically if they're prepared to define growing your own produce as interstate commerce, then basically nothing is safe.

Re: Awesome!

[SpasticWeasel]

Please, let's not bring toasters into the argument.

Re:Awesome!

[gstoddart]

If the constitution is in force and respected

Well, there's your problem. For the last 13 years, it hasn't been.

Before that, it only might have been.

Re:Awesome!

[currently_awake]

If I chose not to sell to "Black People" then that's my choice, right? Oh wait, that's discrimination. The no-fly list is a government imposed jail term without due process.

Re:Awesome!

[currently_awake]

The government will allow trials to clear your name from the list, but not let you see the evidence against you because "national security!".

Re:Awesome!

[Bob the Super Hamste]

If you want to make this sort of argument the US Supreme Court has already provided an excuse that has lead to the most egregious abuses of of the commerce clause. See Wickard v. Filburn where the feds get to regulate it if it might have an effect on interstate commerce.

Re:Awesome!

[mysidia]

We're talking about preventing a Congressman from flying. If a Congressman is traveling to or from Congress, or is flying as a course of Congressional business, they can't be interfered with by anyone other than the Congressional Sergeant at Arms.

Oh, law enforcement most certainly can prevent members of congress from flying or boarding a plane. As mentioned previously, the Scope of Article I Section 6 has been limited civil cases. Williamson v. United States (1908) makes this quite clear. That Breach of the Peace is not narrowly construed, and includes any alleged criminal activity.

And a suspected terrorist link is a criminal matter.

However.. members of the federal government are likely to avoid interfering with members of congress, because they are members of the same social clique --- they also want to appease, not anger members of congress: Members of congress get the red carpet treatment, and bypass long lines at airports, and since congress members can always retaliate by ignoring or voting against them issues they care about, or withdraw their funding, and they have some superior access to the courts to bring actions against any law enforcement officer(s) abusing their rights.......

Re:Awesome!

[MrNaz]

Actually, this is also incorrect. They do not decide what the law means, there is no decision involved. They attempt, to the most exactingly precise level possible, to determine what congress intended when the law was enacted. It is rare indeed that a law is so vague that it's intent cannot be determined with a reasonable amount of clarity.

Or, should I say, it used to be rare...

Re:Awesome!

[dywolf]

there are many rights taken for granted that arent in the constitution explicitly, but that we expect as a fact of modern life.
freedom of movement is one such fundamental human right.

work, family, whatever the situation, there are many things that may require travel, and may be time senstitive. the ability to travel quickly, which means via air, is the status quo in these situations. to be denied that, is to be denied a basic freedom of movement. yes you can still go by train or car, but these are so much slower, that they effectively become impractical. you become put at a disadvantage, particuarly economically ("you can't fly? no job for you"), emotionally ("tell dad not to die, it'll take me 3 days to get there on the road"), etc.

so while the USC may not explicitly grant a right to fly, the idea of a no fly list fundamentally afects how we can live our lives, and the quality of those lives. as such, there needs to be a very compelling government interest, as a representation of the people will to impose something upon ourselves, in doing so.

Re:Awesome!

[dywolf]

Constitutional exclusion doesnt have no effect.
It most definitely does.
But its not a blanket immunity either; its limited.
The onyl way in which might be considered to have no effect, is because the POTUS has rarely tried to arrest them, specifically because of the potential to be construed as abuse, and the USC protects against such things.

Re:Awesome!

[david672orford]

When the judge issues an arrest warrant for someone preventing someone boarding an airplane due to being on a no fly list, I'll believe it will make a difference.

Actually it will be respected when a judge requires the government to either explain why a person is on the list or take his name off. The government has been claiming that the reasons must be kept secret for reasons of national security and that this does not violate the "due process of law" requirement of the constitution because the persons on the list are not being deprived of "life or liberty".

The judge has just ruled at these persons are being "deprived of liberty" and that the appeal process does not constitute "due process of law". Thus, it is unconstitional. The judge has said in effect: "I understand your concerns about national security, but what you are doing is illegal. I don't care how you fix it, just fix it."

The appeals process does not constitue due process of law because the party on the list is not informed of the accusations which he is to refute. The government expects him to guess what information might alay their fears. For a truly innocent person about whom completely nonsensical accusations have been lodged, this is impossible. No one has ever been able to get off this way. Only one person has gotten his name removed from the list and that was by getting an FBI agent to admit that he had checked the wrong box on the form nominating the person for the list. Even then it took a sternly worded court order.

Re:Awesome!

[Talderas]

I don't agree with the Wickard vs Filburn ruling, I'm just stating what it effectively means. That's why I used the term fungible when talking about a flight. A flight between Sacramento and Los Angelas is not the same as a flight between Houston and Dallas. You can't substitute one with the other and you taking the Sacramento-LA flight isn't, at least directly, impacting the Dallas-Houston flight. Now, aspected involved in making that flight perhaps are more fungible and would cover interstate commerce. Things like fuel or time/slots at an airport but as long as you talk about a flight at the macro level it works as an example.

The fact that growing your own grain is interstate commerce is not so much that you're interacting with someone that might have some tangentially interstate linkage but rather that the product you aren't purchasing is a fungible good in an interstate market. When you grow your own grain, you're not buying from the market and thus you're affecting it by creating lower demand. On the same note, you also not engaging in the grain market by not putting your grain for sale.

It's stupid. Whether or not something is interstate commerce should really only depend on the direct transaction.

Re:Awesome!

[dryeo]

Some countries have constitutional protection of rights including the right not to be sentenced to cruel and unusual punishment and not having laws passed to punish at a later date. America created the list and retroactively put people on the list, many people on the list are not rapists and the list causes cruel punishment for minor offenses in some cases.
Here someone just got sentenced for raping an 11yr old boy, part of the sentencing was 10 year prohibition on owning firearms, put on the sex offenders list and forced to give a DNA sample. Note this was part of the sentencing, not a vindictive law passed to make a politician look good by putting sexters, 16 yr olds who had consensual sex with a 15 yr old and various other minor crimes on a list which severely limits their life after doing their sentence.
Note that even without a right to firearms, a judge has to actually ban a person from owning them instead of blanket bans designed to take arms away from segments of society.
While America has a wonderful Bill of Rights, it's useless if not followed by all branches of government and it is up to the Judiciary to enforce those rights. This should also include bans on traveling, if a Judge does it at sentencing, fine, if the government does it just to look tough on crime, terrorism or whatever, not fine.

Re:Awesome!

[dryeo]

America has a common law system, judges can create law through precedent and the legislatures can create laws through statute. Most crimes are now covered by statute but for example, murder was a crime even before there was ever a statute outlawing murder and even today much of contract law exists without statutes but rather as a series of precedents passed by courts.

Re:Awesome!

[Cajun Hell]

A good way for the government to circumvent the law, would be to change the wording at the top of the list from "these people are banned" to "we have concerns about these people."

If an undesirable (hippie, NRA member, unflattering editorialist, Planned Parenthood employee, Planned Parenthood protester, Defcon presenter) wishes to board a plane, the government could ask or recommend the airline to refuse service, without saying why. The airline, since they would be easily subject to various forms of unprovable harassment, would "voluntarily" comply.

Then nobody is banned; the government is merely making suggestions.

Re:Awesome!

[Gr8Apes]

The problem with judge's discretion in sentencing is that it is applied so subjectively. Take a drunk driver for instance - one hits and kills a (drunk) bum and goes to prison for 20 years, another kills 4 people and severely injures 2 with no remorse and gets sent to "rehab" for 6 months. Those are hugely different outcomes and were based on judges discretion for sentencing. (The second case is being reviewed, btw, because it did fall so far out of the norm) Having strict guidelines for some actions is good, IMHO. That said, the level of offense admittedly needs some tweaking to at least be more than 'x' level of offense, such as violence or certain age thresholds being met with discretion below those levels.

Re:Awesome!

[gstoddart]

Well, increasingly they have to make the decision as to whether or not the law is simply a law you can't legally pass because it ignores the Constitution.

Because an awful lot of laws have been passed by hysterical politicians which are nowhere near Constitutional.

Governments keep getting some idiot to write a legal brief which says "Constitution doesn't matter", and then it takes the courts to come back and say "hell no, you're wrong".

This is a fine example of this type of crap.

Re:Awesome!

[operagost]

America created the list and retroactively put people on the list, many people on the list are not rapists and the list causes cruel punishment for minor offenses in some cases.

Correct. I believe this came up in court somewhere and the decision was that it wasn't an ex post facto law because, oh, we're not legislating a punishment, we're just adding them to a list-- as if defaming people isn't a punishment.

Re:Awesome!

[gstoddart]

Fine, but then the airlines will open themselves to liability as someone says "unless you can give me a reason why you are denying me service, what you are doing is illegal".

If the no fly list is unconstitutional, how are airlines refusing service with zero evidence and no legal basis going to get away with this?

Unless the airlines have a policy "we can reject your ass for any reason we choose". And I doubt that would hold up in court.

Re:Awesome!

[lgw]

The DoJ thumbed it's nose at the federal courts a couple of years ago; I forget the issue. Federal judges in unrelated cases across the country began assigning homework to the random DoJ people trying to move stuff forward in court: "write a 4 page paper on why the DoJ is wrong on this issue as part of your next submission to this court". Classy.

Re:Awesome!

[houghi]

Not sure how that works in the US, but in Europe a company could not implement this without any official backing. And that would make it a governement list again.

People would have a field day with this. Even without a lawyer.
+ You can not board the plane
- Why not?
+ You are on the list
- Why?
+ The list says you are a dangerous person and a terrorist and a childmolester.
- My blank slate that I have here tells me otherwise. If I would be dangerous, I should be in prison.
+ Uh, we look at the list and you are on it
- Again? Why?
+ Not sure
- So let me on the plane
+ We can refuse anybody access if we want to.
- No, you cant't. There are enough rulings that state that you need a specific reason forn refusing a person access.

You could try to do it upfront with the reservation, but that would make it even easier to contest.

Re:Awesome!

[Triklyn]

what would happen if the gubermint just released a list of people who they thought were likely to take a plane out of the air? no enforcement. The liability on the airline's part is not worth the airfare.

Re: Awesome!

[Triklyn]

you forget one important thing. you've got enough servicement and women to walk away from their post to make a difference, the uprising wouldn't have been necessary. you seem to forget, we're all americans, we're all human. "the Man" isn't some alien entity, it's just people, trying to keep this behemoth of a nation going.

we may disagree on how to solve problems, and sometimes we may be blinded by our preconceived notions. but i have enough faith in america to believe that mass uprising in response to mass oppression is a very unlikely scenario. Brother mother father son, every boogie man in your mind has a family.

Re:Awesome!

[AthanasiusKircher]

I don't agree with the Wickard vs Filburn ruling, I'm just stating what it effectively means. That's why I used the term fungible when talking about a flight.

Has your interpretation actually been tested or invoked in court?

The reason I ask is because -- while it sounds interesting -- I'm not sure you could get away with it unless you were also talking about a private airline or something that only operates within state borders.

A ticket for a particular passage on a commercial flight may not be fungible, but buying a ticket from a commercial airline most certainly participates in interstate commerce directly, assuming the airline operates across state borders (which almost all, or maybe all airlines do?). If your refusal to buy grain from your neighbor constitutes enough influence to affect interstate commerce, then surely your choice to buy an airline ticket that encourages national airlines to choose routes through your state and local airport (i.e., creating local demand for service from a national company) is participating in interstate commerce.

Even if the airline were solely located in a single state, you couldn't get away with it, since federal regulations have already found ways to target companies which don't go beyond state borders.

Anyhow, again, if you've actually heard someone successfully make this sort of argument in court, I'd be very interested, because it doesn't seem like it could actually work.

Re:Awesome!

[Talderas]

I was using airline as a proxy for a demonstration of some of the aspects of a good under which interstate might still not fall. I don't think any tests have been applied but I'm trying to come up with cases under which maybe the interstate commerce clause would not applied based on the current judicial interpretation. Basically, it falls down to the following three criteria.

1. The good is only produced in one state.
2. The good is sufficiently different from other interstate goods that it can reasonably be construed as a unique market.
3. The good is only sold to customers in that state.

I think it's #1/2 where it breaks down most often whereas #3 is something you would willingly violate. Even if you only sell within the state there are usually some other competitor selling a similar or comparable good and I think that trips into the aspects of Wickard v. Filburn since that company is offering a competitive product to the stuff that is already in an interstate market. I think maybe a newly patented invention that is drastically different from anything else would potentially meet the criteria. A better candidate to test with would be a raw material that is geographically sensitive but even then it would need to be a drastically different product. Like a wild rodent only present in Wyoming and captured and sold as a pet to people in Wyoming may not qualify because it's not likely sufficiently different from a hamster or gerbil and consequently is competing with them.

I hate Wickard v. Filburn with a passion because it's absurd that producing for self consumption should ever be able to be regulated as interstate commerce. It's also the case that I feel is the root for basically permitting many of the federal government's encroachments.

Re:Awesome!

[Talderas]

My delivery was shit. I used "aspected" when I should have used "aspects". I heavily dislike Wickard v. Filburn but knowing it was one of those reasons why I knew the individual mandate of the ACA would be upheld while I secretly wished it wouldn't. It's the whole 'non-participation in a market is participation and therefore subject to regulation' argument all over.

Saying I heavily dislike Wickard v. Filburn is a great understatement because of all the SCOTUS decisions I've ever read, I would rank it as the single worst decision that's come out of the court because it was decision that truly permitted the gross expansion of the government under the commerce clause.

Re:Awesome!

[marcgvky]

Wow, a liberal article published by Soulskill, the editorial leftie overlord... shocking.

Re:Awesome!

[lsatenstein]

How is a PUBLIC list of PUBLICLY TRIED AND CONVICTED sexual offenders the same as a SECRET list of people who MAY OR MAY not have done anything wrong the same? Isn't one is a list of public facts while the other is a secret list of accusations.

Is it because he has a foreign name, or a different religion?

Re:Awesome!

[TechyImmigrant]

This is why I dislike this sort of ruling, that appears bold but is nothing of the sort.

The judge didn't order something to happen. Instead the ruling just reads like a statement of fact. "These poor people are being deprived of their rights".

Every shrugs and carries on. A proper ruling would put someone on the hook for implementing a change. One more person stopped from flying without knowing they're on the list and the A.G. goes to prison.

Re:Awesome!

[phayes]

Ah, and you just woke up to discover that the USG does not want anyone they think is a terrorist learn just what/how/when they came to this conclusion? Go back to sleep.

Re:Awesome!

[mysidia]

Bullshit, federal judges are not peace officers.

Now you're intentionally misinterpreting. I did not say that federal judges are justices of the peace. I said they are peace officers, and those two are not the same thing.

Horseshit. You are trying to refer to the Law Enforcement Officers Safety Act (LEOSA). "Qualified officers may not carry concealed weapons onto aircraft under the act."

Whoever said anything about concealed firearms? I said firearms, period.

Finally

[Blue Stone]

Finally someone (of note) says what everyone has been thinking (and saying).

Without the ability to challenge, it amounts to totalitarianism.

Re:Finally

[Virtucon]

it amounts to totalitarianism.

No, it is totalitarianism.

Re:Finally

[Areyoukiddingme]

"everyone"? I'm part of that "everyone" and I have absolutely no problem with the no-fly list. I also think there should be universal ID for all citizens in the US. I also believe that, when born, DNA samples should be taken from everyone and added to a centralized database.

Let me guess. And a barcode tatooed to the back of your neck?

Back under your bridge, troll.

Sudden outbreak of common sense

[mars-nl]

Thank you Judge Anna Brown. Hopefully this ruling also applies to non-Americans.

Re:Sudden outbreak of common sense

[spiritplumber]

It does, as the law is written; if they want it not to they'll have to make a new law specifically about that. I would feel safer if the freedom to travel was specifically enumerated in the bill of rights, personally... wonder historically why it wasn't.

Re:Sudden outbreak of common sense

[vux984]

I would feel safer if the freedom to travel was specifically enumerated in the bill of rights, personally... wonder historically why it wasn't.

More or less, it actually was:

http://en.wikipedia.org/wiki/F...

The rationale for the no-fly list not violating those rights is "well they can still walk and swim"; we're just saying they can't fly.

Re:Sudden outbreak of common sense

[tranquilidad]

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.

Re:Sudden outbreak of common sense

[Anonymous Coward]

Finally someone who recognises that the US Constitution is not the 'Law of the Land', rather a framework on what laws may exist.

Re:Sudden outbreak of common sense

[spiritplumber]

I like the "Constitution as meta-law" concept.

Re:Sudden outbreak of common sense

[thaylin]

It is a part of the group of natural laws of the government. It is THE law of the land in which other laws spring forth from, and determines if they are valid or not.

Re:Sudden outbreak of common sense

[jeIlomizer]

The rationale for the no-fly list not violating those rights is "well they can still walk and swim"; we're just saying they can't fly.

Similar arguments were used to justify the TSA and free speech zones, if I remember right. Why not just suspend people's rights in the entire country? They can go elsewhere if they don't like it! This logic makes sense to authoritarians...

Re:Sudden outbreak of common sense

[fyngyrz]

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.

This is precisely correct. Sadly, it didn't work. Primarily, I think because the constitution is toothless: Violate it, and... nothing happens.

Re:Sudden outbreak of common sense

[Immerman]

And don't forget the tenth amendment, which even more clearly states that the United States government has no powers except those explicitly listed in the Constitution:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Funny how those last two amendments get overlooked so often.

Re:Sudden outbreak of common sense

[Prien715]

Thank you!

It's not the first time I've heard it, but the from an ontological view it's important to declare the rights exist independent of the government in power to enforce or restrict them....

Then I learned that rights always come from a perspective. "Property rights" was a crowd-favorite from the Dred Scott decision.

Re:Sudden outbreak of common sense

[TwoUtes]

Does the U.S. Constitution and Bill of Rights apply to non-U.S. people? I would assume not, so a no fly list in the U.S. on foreigner travelers would still hold. True?

Re:Sudden outbreak of common sense

[Princeofcups]

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.

And this gets modded up I guess because that's what we'd like it to be. No the Bill or Rights are just that, rights that people have in the US. Nothing, be it person, corporation, government, or church can take these rights away from you. It has NOTHING to do with limiting the powers of the Federal government. This is just a cleverly disguised states rights post, or something. I knew there was something underhanded going on when you snuck that "right to bear arms" in there and forgetting about the militia bit.

Re:Sudden outbreak of common sense

[Darinbob]

Some people have actually been detained in other countries after taking a boat to arrive, because they were on the US no-fly list. In practice, this list is being used as a catch-all "this person is a terrorist suspect" list in many places around the world.

Re:Sudden outbreak of common sense

[TheGavster]

Entries in the no-fly list are sufficiently bare of details that by the law of large numbers, most of the entries probably apply to a US citizen somewhere, even if the entry was added for a specific non-citizen. Hence why there are periodic stories of family vacations stopped by the US Government accusing 3 year olds of terrorist sympathies and soldiers recently returned from duty of being the enemy they were just engaged with.

Re:Sudden outbreak of common sense

[Trailer Trash]

Keep preaching this. I have had to explain this over and over again, mainly to wingnuts of both persuasions who like to point out how the Constitution doesn't prohibit their pet laws so they must be okay.

Re:Sudden outbreak of common sense

[Immerman]

I couldn't swear to it (shame on me, I've let my civics get rusty), but I believe it has historically been accepted to apply to all people on US soil. ("it" rather than "they" because the BoR is simply a name given to the first ten Constitutional amendments, which were ratified en-masse shortly after the Constitution itself was ratified). Hence the existence of Guantanamo bay, a place to keep prisoners without granting them all those annoying rights that they could use to contest their incarceration. Except that, IIRC, the Supreme Court ruled a while back that since GB is under US jurisdiction normal laws still apply (much like an embassy legally being in the jurisdiction of the foreign nation rather than the host.), though since it's a military base I believe they get some leeway.

Re:Sudden outbreak of common sense

[BradMajors]

The Bill of Rights uses the term "person", NOT "citizen".

Re:Sudden outbreak of common sense

[tranquilidad]

So, your belief is that the Bill of Rights is a list of rights granted to the people by the government? What does the preamble say to you?

The reason I left the "right to bear arms" in there is because of the structure of the sentence that says, "the right of the people...". I could have also listed just the, "shall not be infringed" part and retained the meaning.

Perhaps you would be so kind as to explain how the U.S. Constitution is constructed from your perspective and how the language used in the Preamble to the Bill of Rights, the 9th and 10th amendments and the other articles of the Constitution reconcile with its purpose.

There's no doubt the U.S. Constitution has been hijacked by the national government. This was enabled by a re-definition of "commerce" in the 1930s. A really good example of how the Constitution was viewed before this re-definition is the language used in the 18th amendment creating prohibition.

Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all the territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

Notice that the people, through the states, are granting a brand new power to the national government. The states were very careful in how they granted this new power to the government.

Now compare that amendment to the proposed equal rights amendment:

Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Section 3. This amendment shall take effect two years after the date of ratification

This amendment is restricting the power of the national government and the states. Those restrictions already existed. The language, on the other hand, shows the, in my opinion, disastrous evolution of thought from limited government with power coming from the people to one where the national government is strong and grants or denies rights to the people.

Re:Sudden outbreak of common sense

[Guy From V]

Actually I believe it applies to all people worldwide I doubt that could be effectively enforced, but there is. At least this is how the natural rights of all beings were envisioned by our founding fathers - which we can see isn't the vision of the modern iteration of our government.

Re:Sudden outbreak of common sense

[radarskiy]

The Tenth Amendment does not say "explicitly" anywhere. In addition, Article One does contain the Necessary and Proper Clause.

Re:Sudden outbreak of common sense

[TheCarp]

This. I mean, it was an admirable, if failed, attempt.

In the end our greatest protection was that the constitution was written by men who knew that what they were creating could be used against them, and so they attempted to put limits on it. Those limits were great but, as time went on, many were circumvented over some "crisis" or another; with each excuse piling upon the one before it.

And lets not even talk about the laughable scalability of the system. 300 million people have their interests represented at the highest levels by under 1000? Why to keep representation levels close to what they were in the begining, you would need nearly 90,000 representatives.

Never mind the idea that two big tent parties can, in any meaningful way, represent the spectrum of even reasonable views.... but the system is designed to settle into a stable two party system; and is most easily gamed by two parties that divide up the issues between them.

Re:Sudden outbreak of common sense

[Virtucon]

It's too bad we can't nominate justices to the supreme court, I'd put her name on the list.

Re:Sudden outbreak of common sense

[Sloppy]

Our greatest protection was giving-a-fuck.

It's still available, and occasionally used in some limited contexts. There's pretty much no problem that won't be quickly fixed by the people exercising this power.

But we usually refuse. Giving-a-fuck is somehow a "nuclear option" these days, not to be exercised lightly. "Whoa there, this might be a crappy situation, but I'm not going to 'throw away' my vote!"

Re:Sudden outbreak of common sense

[operagost]

Except for that part in Article VI where it says that it is "the supreme Law of the Land."

Re:Sudden outbreak of common sense

[operagost]

Nothing, be it person, corporation, government, or church can take these rights away from you. It has NOTHING to do with limiting the powers of the Federal government.

You contradicted yourself in two successive sentences.

Re:Sudden outbreak of common sense

[cyberchondriac]

That's scary. And the powers of the Federal government just keep growing like a cancer, and the states take on ever more subservient, delegated roles.
This country was never designed for a monolithic seat of power, and yet it keeps moving in that direction. And on a related note, no matter which side of the legalize pot issue you're on, I think it's good to see Washington and Colorado giving the finger to DC, at least it's something where the states and the people have reclaimed some authority, though there are other issues they should address too.

Re:Sudden outbreak of common sense

[shutdown -p now]

It does apply to non-citizens that come under the US jurisdiction for any reason. And most clauses of the Constitution speak of "people", except for political rights like voting or standing for elections that explicitly use the term "citizen".

Re:Sudden outbreak of common sense

[Areyoukiddingme]

But we usually refuse. Giving-a-fuck is somehow a "nuclear option" these days, not to be exercised lightly. "Whoa there, this might be a crappy situation, but I'm not going to 'throw away' my vote!"

Giving-a-fuck has nothing to do with voting. Think Civil Rights Movement. Now consider the Occupy Wall Street Movement, which was attempting to follow that same precedent. How well did that turn out? Oh yeah, nothing.

The propaganda machine is too far advanced to successfully challenge with peaceful in-person protest any longer. The utter failure of OWS was the definitive demonstration of that fact.

You think slips of paper peacefully stuffed into a ballot box is the natural progression here?

I'm afraid not.

WTF

[Anonymous Coward]

Did someone murder all the federal judges and replace them with people who can think?

Re:WTF

[Bartles]

No, you're just starting to see a judicial backlash. They are starting to realize that this country has a real problem.

Re:WTF

[MickyTheIdiot]

When this gets to SCOTUS I am sure Scalia will find some twisted logic to say the list is AOK.

Re:WTF

[Anonymous Coward]

If you read a bit about US history, you'll see that these things take time, but eventually (a couple of decades) things usually get fixed.

Let's hope that's true for the No Fly List, Obamacare, NSA spying, and a lot of the other b.s. Republican and Democratic presidents have pushed through.

Re:WTF

[TapeCutter]

"Americans can always be counted on to do the right thing, after they have exhausted all other possibilities." - Churchill

Re:WTF

[Virtucon]

Only if he and four others agree, otherwise he'll write the dissent for the minority.

Re:Here's the Solution

[AK Marc]

https://www.aclu.org/national-... I guess being US military personnel associates one with being a lunatic extremest. 4 of those on the list were veterans.

About time

[HangingChad]

It's okay having a no fly list but not having a way to appeal being on it is an abomination. The irony is that sometimes actual terrorists are allowed to fly so they don't get tipped off the US is watching them. That's downright brilliant there. If the US is going to ban someone from traveling, they need to admit it and provide an appeals process.

Re:About time

[Shakrai]

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.

Re:About time

[Snotnose]

Hell, not knowing you're on it until denied boarding is an abomination. What ever happened to due process? Oh I forgot, it's the terrorists/children/drugs/$fear_of_the_day

Re:About time

[fnj]

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.

Agree it is pointless and stupid, but ...

What about the many people on the list who are US citizens already residing in the US? They don't NEED visas. The list really does provide a framework to infringe, utterly without due process, the rights of people including US citizens. There is absolutely nothing preventing whoever puts people on the list from adding the names of EVERYONE ON THE PLANET whom they can identify.

Re:About time

[fnj]

Why is it okay to have a no-fly list? Is there some reason there couldn't be a "carefully check" list? Is it really necessary or moral to deny someone the freedom of movement without even a hint of a chargable crime? Why not simply search them before boarding? IMO; Totalitarianism, that's why.

The no-fly list. the TSA checking everyone before they board the plane to make sure they are not carrying means to do harm.

Pick one. One or the other is STUPID. It is pointless to have both.

Re:About time

[Anonymous Coward]

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.

That's not what the Attorney General of the United States says -- "a careful and thorough executive branch review of the facts in a case amounts to 'due process''

Re:About time

[Shakrai]

I'm not losing a whole lot of sleep over the countries in the visa waiver program. Quoting from here:

there is a long list (pdf, p. 5) of requirements countries need to meet in order to qualify. They must have “effective border controls,” “political and economic stability,” machine-readable passports, and exhibit a close degree of cooperation with US law enforcement.

The EU, Iceland, Australia, Japan, and Chile don't keep me up at night. Neither does Canada. Saudi Arabia on the other hand....

That took long enough

[Anonymous Coward]

Why did it take over a decade for someone within the government to reach this conclusion?

Re:That took long enough

[RJFerret]

Hear, hear! As totalitarian countries go, the US is slow to act...oh wait, perhaps if this ruling isn't challenged, ends up having some impact, and surveillance is ameliorated, the US won't carry the "totalitarian" adjective any longer.

Re:That took long enough

[sir-gold]

It took this long before a judge was actually allowed to make a ruling on it.

In order for a judge to make a ruling, there has to be a court case first, the judges aren't allowed to initiate action on their own. In order for someone to bring a case against the list, they first have to prove that the list affects them (this is why the ACLU couldn't do anything on their own, because they themselves weren't on the list). The problem is that the list is completely secret, so there is no way of knowing someone is on the list until they actually try to fly somewhere and get stopped.

It's taken this long for someone to be officially stopped who had both the resources and the desire to challenge the list in court.

Re:That took long enough

[Immerman]

Well, it's a step in the right direction at least.

Re:That took long enough

[fnj]

You want to know what I think is an abomination? Yeah, I know, nobody wants to know that, but I'm going to say it anyway. The requirement that one must have "standing" in order to challenge a law in court. That is BULLSHIT. Challenging laws should be EASY. Making them should be hard.

Re:Here's the Solution

[Dorianny]

In 2004 senator Ted Kennedy appeared on the No Fly List. Apparently merely holding hearings on terrorism is reason enough to land on it!

Re:Here's the Solution

[almitydave]

See also https://en.wikipedia.org/wiki/No_fly_list#False_positives.

Re:Here's the Solution

[MickyTheIdiot]

Yeah... the people that are wrongly put on the list because of similar names really deserve it. They should have had the sense to choose a different name.

Re:Here's the Solution

[K. S. Kyosuke]

Obviously, all Muslims are lunatics.

Re:Here's the Solution

[Anonymous Coward]

In 2004 senator Ted Kennedy appeared on the No Fly List. Apparently merely holding hearings on terrorism is reason enough to land on it!

Honest mistake. They thought it was a no-drive list.

Hold on to your seats

[Mister Liberty]

It's a decent ruling, but...
Having the right to travel doesn't mean any particular airline
has the obligation to carry me.

Re:Hold on to your seats

[geekoid]

Since they are supported by your tax dollars, why not?

http://www.narprail.org/resour...

Re:Hold on to your seats

[Richard_at_work]

Half of the type of things on there could be equally applied to every single industry in the US in a similar manner...

Nice

[towermac]

And btw, how is it that even having a "no fly list" is legal?

What does that mean, exactly? Are you a criminal or not? If they know that someone wants to blow up or hijack a plane, then go arrest the fuck out of them right now.
Or leave them the hell alone. We are talking about US citizens, right?

I understand that Bin-Laden should have probably been on some "no fly list". Known foreign criminals even. Along with the bipolar manic depressive with a history of making trouble on planes. That's about all that comes to mind.

I also understand putting them on the list temporarily, until that due diligence can be done. But that means that the "appeal", should be automatic, and the end result is that you get cleared, or busted. (or crazy as mentioned above, which is still temporary, in the event that the person can prove treatment and remission)

Re:Nice

[Anonymous Coward]

As somebody once said: the no-fly list is a list of people that are too dangerous to be allowed to fly, but not sufficiently dangerous to bring in and actually charge with some sort of crime.

In what universe does this even make any sort of sense? You think I associate with terrorists? Charge me. Don't pussy foot around and pretend that I'm some sort of quasi-danger but not important enough to bring up on charges. Either I'm a danger to society and should be arrested, or I'm not (and should be allowed to go wherever I want, using whatever means of travel I want, within the boundaries of the law.)

Re:Nice

[Anonymous Coward]

And btw, how is it that even having a "no fly list" is legal?

It's probably not; it's being worked out in the courts, hence the court decision. But short term, presidents can get away with a lot; always have in the US.

Re:Nice

[phorm]

You think I associate with terrorists? Charge me.

OK, the problem with this: Once you charge somebody, you need enough to get a conviction. Maybe you're still gathering evidence, whatever. Maybe you're collecting enough to round up a whole group at once (because once you nail person A, then B and C are going into hiding).

You still don't want this guy blowing up planes, but you haven't got enough paperwork done to ensure you can lock him up. People knew that Elliot Roger had issues. Police even checked him out. They didn't arrest him. They didn't take his guns.

Doesn't really say much

[jcochran]

The ruling doesn't ban the no fly list, it merely requires the government to make a suitable appeal process for those who are on the list. So you may expect the list to still be in use for quite a while. Additionally, Judge Brown is only on the Oregon district. So her ruling only applies to Oregon (however, it will be used as a precedent in other districts). All in all, it's still a very good ruling, but there's still a long ways to go.

but, but

[geekoid]

alarmist on /. assured my this would never happen, and that we would all be rounded up and tracked!

Re:Here's the Solution

[LynnwoodRooster]

Well, in Ted's case, given he was probably flying in first class AND had enough alcohol on his breath he might have intoxicated the pilots merely by his presence. So it was a safe call for him...

Ill guess

[Anonymous Coward]

1. A government that stone walled when information was requested.

2. A (majority) population that equates dissent with being "UnAmerican" or Un-patriotic" (Mostly Fox News' fault - A foreign owned media outlet run by a meglomaniac.)

3. The innate slowness of the legal system and the courts.

4. Just the amount of money that is needed.

5. And lastly, a population that has no clue what freedom actually means. (That, I have to blame the fact that our schools are shit. They no longer adequately teach civics and other topics needed for an educated electorate but instead have turned into vocational schools - thanks to corporate lobbying. Having skilled workers is business' problem and expense NOT the taxpayers'. It's just another example of privatizing profits while making losses and expenses public.)

Re:Ill guess

[fnj]

our schools are shit

Our schools are instruments of BRAINWASHING and of relentlessly stamping out the embers of thirst to know what, why, and how.

Prediction: New addition to the No Fly List

[rsborg]

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...

Re:Prediction: New addition to the No Fly List

[Anonymous Coward]

Sweet, that sounds like a common enough name to create even more public outrage against the no-fly list. If I recall correctly one of the problems with the list is that they are JUST names, nothing else to identify the intended target. Therefore if the 61 year old Judge Anna Brown from Oregon is added to it, then even an 18 month old Anna Brown from Georgia would result in the TSA being like "you aren't getting on a plane with this baby with you".

Re:Here's the Solution

[Shakrai]

Apparently merely holding hearings on terrorism is reason enough to land on it!

It was actually a name mismatch. Never attribute to malice that which can be attributed to incompetence.

Re:Here's the Solution

[thaylin]

And that is the problem with something that by passes due process. You would get a whole lot less if you followed it then if you dont.

Re:Here's the Solution

[AHuxley]

It gets more fun too
"Immigration officer fired after putting wife on list of terrorists to stop her flying home (31 January 2011)
http://www.dailymail.co.uk/new...
"US Has A 'Secret Exception' To Reasonable Suspicion For Putting People On The No Fly List" (Apr 17, 2014)
https://www.techdirt.com/artic...
That other list:
"DHS ‘hands off’ list allowed suspects with terror ties into U.S."
http://www.washingtontimes.com...
'Hands off' list? Senator questions whether DHS allowing those with terror ties into US (May 07, 2014)
http://www.foxnews.com/politic...

Re:Let's be hospitable to terrorists?

[thaylin]

Terrorists? You think the only people put on that list is terrorists? It is shown that people are put on that list for a madrid of ordinary thing, or just because you are challenging the government. But keep on thinking that it is only terrorists... We have a saying in this country, innocent until proven guilty, based on the due process under the 4th amendment to the constitution. The no fly list violates that.

Did She Stay Her Own Ruling?

[EmagGeek]

I didn't read the entire ruling, but does anyone know if she stayed the ruling pending appeal, or does the ruling take effect immediately?

Re:great. now lets remove the ban on

[thaylin]

Because putting people you dont like on a list to prevent them to fly is ANYTHING like bringing weapons on a plane...

Re:great. now lets remove the ban on

[ChilyWily]

Some airline food I've eaten already falls under that category.

Re:Let's be hospitable to terrorists?

[jeIlomizer]

Terrorists? You think the only people put on that list is terrorists?

I think he's under the delusion that the government is full of perfect and benevolent angels who could never make a mistake or do anything immoral. That seems to be a common problem for people who are utterly ignorant of history.

Why does she hate our freedom?

[BenSchuarmer]

All of this due process and stuff is down right un-American

Re:Here's the Solution

[Darinbob]

However once you combine incompetence with malice, then you have a solid foundation to create a government department.

Re:Here's the Solution

[TheGavster]

The trick here is that he was powerful enough to get them to look it up and find out it was a mismatch. You or I (presuming you're not a Senator posting under a pseudonym?) wouldn't get that luxury.

Death List

[BradMajors]

So a "no fly list" is not OK, but a "death list", (ala Awlaki), is OK?

Re:Death List

[Virtucon]

That's another silly constitutional matter, so Awlaki needs to just come forward with his lawyers and.. Oh wait, he's dead so he can't.

Re:Let's be hospitable to terrorists?

[jrumney]

Or in the case of the woman in the court case that allowed this judicial review, because an intern entering the data from an already approved visa application into the system ticks some boxes that were confusingly worded negative questions, and should have been left unticked.

Re:Here's the Solution

[radarskiy]

Sufficiently advanced incompetence is indistinguishable from malice.

What's wrong with luxury?

[jdavidb]

The court concludes international travel is not a mere convenience or luxury in this modern world.

What does that have to do with it? Even if it were a mere convenience or luxury, the point of government is to secure the right to liberty. That includes the liberty to enjoy some things that some people might regard as a luxury (a subjective judgment if I ever heard one), so long as I am not doing so at the expense of somebody else's right to life, liberty, or property.

Re:What's wrong with luxury?

[suutar]

Because one of the government's justifications in the past has been that it's not really that much of a hardship, and judges tend to try to avoid flat out saying "my predecessors and colleagues were idiots and their rulings were bullshit." So instead we're going with the "well, that may have been the case before, but not so much now, so we're going to rethink this."

Re:What's wrong with luxury?

[jdavidb]

Because one of the government's justifications in the past has been that it's not really that much of a hardship

True. And I used to buy that. :( I hardly ever fly, and I used to actually think I should have a say in what other people do in life.

judges tend to try to avoid flat out saying "my predecessors and colleagues were idiots and their rulings were bullshit."

Sounds like a job for a jury! :)

Re:What's wrong with luxury?

[Areyoukiddingme]

Sounds like a job for a jury! :)

Yes well, even knowing what the words "jury nullification" mean guarantees a free pass from jury duty for life.

Re:What's wrong with luxury?

[jdavidb]

They never want me. They find out I won't enforce the law as written if I find it to be immoral, and that's that.

Hopefully eventually they will be unable to find enough jurors who don't feel like me in the jury pool! But I guess I'm feeling over-optimistic today.

So what?

[mark-t]

They'll still do it anyways... the government has a quite long track record of ignoring what courts might decide if that's not something they want to do. And what is the average person going to do about it if they still use it?

Where else might this apply?

[blindseer]

Now we have a federal court that says we have a right to travel by whatever means we choose. It is insufficient that there are other means to travel to prevent people from boarding a plane as the government has argued before. Where else might this apply? I could see a right to travel being applied to other cases.

What of a person that wishes to pilot a plane? We've seen people be denied getting flight lessons before because of actions by DHS and/or DOJ.

What of a person that wishes to drive a car? Pushing this a bit further can the government require a license to drive? Could the government be forced to issue a license to drive? People with vision problems would not likely have a case, an issue of being physically capable of controlling the vehicle would be obvious. What of a person that was perhaps found guilty of vehicular manslaughter? Or a long history of drunken driving?

We've seen all kinds of barriers to free travel, the ability to fly is just a small part. We've seen random searches of people walking on public streets for drugs and weapons, "safety" roadblocks where police will go fishing for drunk drivers and busted tail lights, ID checks on city buses, TSA pat downs to **leave** a train, which is just a few off the top of my head.

We've seen our freedom to travel get slowly eroded. The excuse seems to be to make us "safe". I seem to recall a wise man saying something about trading our liberty for the promise of safety.

We all knew this....

[Anonymous Coward]

We all knew it was unconstitutional on its face. Nobody doubted that.

Now that we have some trivial judicial agreement, it's time to start arresting those who violated the civil rights of American Citizens. There are going to be a lot of TSA thugs in every state penitentiary.

We should also prosecute the perjury be every person who ever took an oath the US Constitution who worked to enforce the no fly list. There are going to be a lot of National Guard thugs spending the rest of their lives in the Leavenworth Correctional Barracks.

Re:Here's the Solution

[jd2112]

However once you combine incompetence with malice, then you have a solid foundation to create a government department.

No, you need a huge budget and lack of oversight as well.

No Punishment Without Crime

[ihtoit]

...seems pretty open-and-shut to me.

This is a step in the right direction

[Anonymous Coward]

Yes, this ruling will be challenged, and will probably make its way to the U.S. Supreme Court, but it is a critical first step. Although the process may appear slow, sooner or later, every law has to stand up to one simple test: "Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void." See Marbury v. Madison, 5 U.S. 137 (1803).

If it was any other country.

[andy_spoo]

The US government does behaive like a dictatorship on many occasions. It's easy. Either you have evidence, in which case charge them. Or you don't. I see little difference in a dodgy country that controls it's citizens at will and the US. Next they'll be locking people away for years without even a trial. And make them wear ugly orange suits....... oh.... hang-on......

Re:Here's the Solution

[serviscope_minor]

However once you combine incompetence with malice, then you have a solid foundation to create a government department.

Or Sony.

Just a name list - legal loop hole - suggestion

[advid.net]

Then I suggest they set up a second list where particular individuals would be listed as "can actually fly despite name on no-fly".

So if a Todd Smith has his name put on no-fly list for some reasons, an other Todd Smith would be able to ask thorough check and have his identification put on the do-fly so he would no longer be banned from flying.

So?

[ThatsNotPudding]

When was the last time the federal government - let alone the independent organs of state security - paid attention to the rulings of mere judges? Even the US Marshal service now ignore them (Stingray).

Right there in the Fifth

[ThatsNotPudding]

...in time of War or public danger...

The Endless War on Terrorism was deliberately created to short-circuit all other rights.
There is no winning; the grand experiment of freedom and representational democracy is over.

Why did it take so long to come to that conclusion

[jraff2]

The no fly list has been in effect for many years. Why did it take so long for a judge to call foul on the Gov. for such rediculous rules? This should have happened within the first year!

Re:Here's the Solution

[Shakrai]

However once you combine incompetence with malice, then you have a solid foundation to create a government department.

Which is how you end up with the DMV..... ;)

In Senator Kennedy's case I truly doubt that it was malice. Putting someone with that high of profile on the list serves only to draw attention to it. I actually retain enough faith in the Government (some would say naivety) to think that the No Fly List, TSA, et. al are run with good intentions. Whatever malice exists there is mostly bureaucratic ass covering, not a broader conspiracy.

In the final analysis it's our own damned fault for valuing security over liberty. Try having a conversation with the average voter about the actual odds of dying in a terrorist attack. It escapes most of them. They don't want to think. They just want to be safe. TSA would be shut down tomorrow if a large enough majority demanded it. Hasn't happened yet, has it?

Redress numbers

[oneiros27]

Yes, they exist, but the big problem is that you don't know about it 'til the first time you try to fly ... and then you have to jump through major hoops (if you're even allowed to board).

The first clue is that the airlines won't let you check in online -- if that happens, make sure you give yourself a couple of hours at the airport, rather than thinking you'll just breeze through security.

Then you can go through explaining that no, the 3 year old you're traveling with is not whoever it is that they're watching. (oh, you laugh, but it happened to my neighbors)

Silly Judge

[Anonymous Coward]

Still thinking there is law.

It's been over a decade.

[ToddInSF]

Everybody knew it was illegal when it was first implemented.

The massive harm it's done to people is still not going to be addressed.

Nobody has been, or will ever be held accountable for the impact on people, the economy, and the assault on liberty.

It happened here and nobody that had any authority to do anything about it really gave a shit.

And we kept electing the assholes anyway.

Re:Here's the Solution

[Darinbob]

Actually there was a "T Kennedy" on the list. And the senator's real name is Edward, not Ted, so technically it should not have even matched. A problem is that there may be thousands of people with the same name, but the list wants to restrict just one of them only. So all those other people are forced to bring out more identification to prove that they're not the person on the list, they can never check in for a flight at the curb or from a kiosk. These people can, after a lot of work, obtain a card that they can present at the airport that says they've been cleared. But it's all a major hassle. And that "T Kennedy" is just an alias of a suspected terrorist, imagine if that suspected person used "John Smith", "D Cheney", "Bonno", "B B Ghali", etc.

Many of those names are not added because they are even suspected terrorists. It's so easy to add a name to the list but very hard to remove it again. Some of the names there are just greenpeace activists (not even the violent ones), anti war activists, and so forth. Cat Stevens (the singer, who now calls himself Yusuf Islam) is on the list, which also meant that senator Ted Stevens' wife Catherine was questioned at the airport to be sure she was not the Cat Stevens from the list. Several congress members have been questioned at airports. Nelson Mandela was on the list! But that was cleared up almost immediately when you get the secretary of state panicking. Shah Rukh Khan, the movie actor, was detained for questioning while he was trying to enter the US to present a movie about racial profiling. Someone was detained in the UK after taking a frigging boat (not flying). One person mysteriously on the list was told by the FBI that he could be removed from the list if he'd volunteer to spy at his mosque. It's entirely bizarre, and a writer of fiction would not invent such unbelievable stories.

Re:Here's the Solution

[Triklyn]

you give them too little credit. there's absolutely no reason it can't be malicious incompetence :)

Re:Discretion

[swalve]

The judge's purpose is to run a legal trial and to rule in matters of law. The jury rules in matters of fact. If there is no jury, the judge both.

Non-citizens are still humans

[pjt33]

We are talking about US citizens, right?

What on Earth does that have to do with it? It's perfectly reasonable for the law to distinguish between citizens and non-citizens in matters like residence. I'll even grant that it's not unreasonable for it to distinguish between citizens and non-citizens in the question of who can vote - although that flies in the face of the professed reason for the US War of Independence; and as someone who lives and pays taxes in a country where I'm not a citizen it sometimes irritates me that I can't be fully involved in politics. But in basic matters of human rights like the right to the presumption of innocence, which is what this is about, nationality should be completely irrelevant.

Re:great. now lets remove the ban on

[Cimexus]

Uh, most (non-LCC) carriers outside of North America?

Hell, on Qantas in Australia (to take an example I know of, I'm sure there are others), you get fed in all classes, even on short 40 minute flights. Free drinks too, including wine or beer if it's a weekday flight after 5pm.

Re:Let's be hospitable to terrorists?

[Areyoukiddingme]

Or in the case of the woman in the court case that allowed this judicial review, because an intern entering the data from an already approved visa application into the system ticks some boxes that were confusingly worded negative questions, and should have been left unticked.

And people say the decline of education in this country, particularly in English, is such a bad thing...

Some high school English teacher somewhere deserves a medal for "socially promoting" the oaf who couldn't understand the words on the screen.

Re:Let's be hospitable to terrorists?

[jrumney]

It was as much the fault of the idiot who wrote the form as the oaf who filled it out, as far as I could make out from the reports.