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!

[MrBigInThePants]

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

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!

[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!

[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!

[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!

[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!

[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!

[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!

[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!

[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!

[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!

[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!

[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.

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: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.

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: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: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: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.

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: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.

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.

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...

Re:Hold on to your seats

[geekoid]

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

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

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: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.

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: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: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: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: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: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: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

[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.

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

[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.