Federal judge rules U.S. no-fly list violates Constitution
reuters.com
reuters.com
I think the U.S. government has a right to keep a list of suspicious persons, watch and monitor them, block them from visiting the United States, but there should be a way to appeal your inclusion on that list especially if you are a U.S. legal resident or citizen. You can't just remain on that list forever, unable to travel, with no evidence or justifiable proof of criminal association with terrorists. That's limbo.
It doesn't seem like a right on it's own, so much as included in the existing right to "liberty". My 2 cents.
Again, not trying to be pedantic, but this is another major point of contention in Constitutional law - how broad of a scope do each of the Constitutional named rights have? The 9th Amendment implies that it is extremely broad, as it explicitly reserves non-enumerated rights as falling under the Constitution.
DISCLAIMER: just to head things off, I bring up Roe v. Wade not because of the topic of the case, but because the general opinion on the ruling's use of the 9th Amendment is pretty consistent (and there are numerous subsequent cases that deal almost solely with this). There are many who agree with the outcome but have major reservations with the potential repercussions of the legal reasoning.
However, you can just look at the general consensus on Roe v. Wade to see that it's far from universally accepted that the 9th Amendment is that broad (that the crux of the opinion is very flawed, relying on a very strange and far reaching right of privacy derived from the 14th Amendment and 9th Amendment - neither of which mention privacy. To clarify - on both sides of the Roe v. Wade debate, most will admit the ruling was flawed, and when relying on it as precedent, nearly all judges will also refer to subsequent cases that address the problems with that ruling). So, the Constitution does not guarantee a right to travel (and the way this ruling is phrased suggests that an appeal would bring this as a concern, and in upholding the ruling, a higher court would almost certainly clarify this). A more likely argument (in terms of its strength in Constitutional law) is one that protects a right to travel as a part of the 1st Amendment right to free speech, expression, and assembly (so a negative right granting freedom from unlawful interference in travel by the government).
To this the Court has found that there was no due process, therefore the no-fly list - as it stands now - violates the United States Constitution.
The right to travel, in the broad sense of "you have the right to move wherever you want to move so long as no laws are violated," is likely covered by an umbrella of the 1st Amendment right to free speech and expression, as well as the 9th Amendment, as a negative right: you are free from being prevented from travel by means not permissible by law or Constitutionally.
However, if the decision relies on other grounds (either solely or in addition to), then I doubt it is overturned. While the Reuters article presents this as legally binding, if the quotes occurred in dicta (discussion of the facts and implications of the case that are not legally binding, as they are not grounded in case or black letter law), then it's not binding, and the ruling can be upheld without addressing the redefinition of liberty.
https://www.aclu.org/sites/default/files/assets/latif_v_hold...
I summarised the case in this comment:
Why not?
However, it goes further as they found that as per Mathews v. Eldridge, 424 U.S. 319, 333 (1979) the plaintiffs constitutional right to due process has been violated because:
1. not only do they have a right to travel internationally, being placed on the no-fly list stigmatises them as the government discloses the list to other parties (such as ship captains) and additionally deprives them of their liberty.
2. Notice is insufficient as there is inadequate information given to those on the no-fly list, because under government policy they neither confirm nor deny they are on the list. This leads to a catch-22 situation where you cannot appeal an erroneous decision as you cannot tell what that decision was.
Interestingly, the court said they couldn't determine if there were issues with judicial review.
There is a third test, which is to weight the government's interest against issues with disclosure, but this couldn't be determined by the Court.
The ruling is quite readable, btw. It can be found here:
https://www.aclu.org/sites/default/files/assets/latif_v_hold...
Not to mention ending or deeply cutting the drug war. Or our constant talk of FISA, NSA, etc powers. I really think the conversation that would have been unthinkable in 2001-2005 is finally happening.
Sadly, social progress happens one funeral and a time and as the older generations die off, we'll move towards shifting the pendulum back to sanity. Heck, we may even see Bush and Cheney arrested for war crimes someday. Perhaps I'm too much of an optimist, but living in constant fear and endlessly burning up our dollars fighting terrorism is just not an option, especially when we compete on a global scale with nations with 1/20th our military spending, higher standards of living, and rising economies.
Very much depends on how permissive your definition of liberty is. Not trying to be pedantic, this is actually a pretty big issue in constitutional law. It does seem to be a violation of due process, at the very least. An aggressive attorney may even allege a violation of the Equal Protection Clause in skirting the rebuttal of "there is a way to challenge it by appealing directly to the court," as well as the cases where citizens only discovered their inclusion by arriving at the airport.
This is a pretty important case in terms of defining the scope of federal agency's power (can agencies create regulations that burden various classes of people differently without providing notice or a way to contest your inclusion simply?) that could ripple out to non-law enforcement and homeland security agencies.
While Wikipedia is not case law, having done a year in law school, I can attest that those pages are some of the most accurate out there. Definitely seems as though the notice requirement, in particular, is not being met by the government, as the punishment (not being able to fly) is being discovered prior to the accused even having the limited options presented to them. There's also good arguments that their right to counsel and trial by jury is being violated (although there are some larger loopholes for avoiding those - namely that trial by jury and some other 6th Amendment protections only being available in criminal trials, which I assume the government would dispute, having never formally filed charges, as well as the hazy catch-all the US has learned to use - classifying those who it wants to treat as criminals without having to obey constitutional and legal standards as enemy combatants. I doubt they would resort to this, however, as it would be inevitable that someone misclassified would get some media traction, and potentially force a judicial ruling on enemy combatant status, which is not in US interests).
And then we go and revoke the passports of people who are behind on child support payments, which isn't even a crime, and suddenly restricting the ability of people to travel becomes something the government can use any time it wants without a court order with no clear reason why.
Definitely think this area of law can use some refinement to protect all interests more fairly.
In many cases, this is likely true. However, the nature of the word (which doesn't have a definition clearly defining it), means that adding clear definitions to it begins to risk what the founders intended to avoid by not enumerating any rights (hence the Bill of Rights as amendments, including the 9th Amendment). Again, all this suggests to me that due process and equal protection, rather than creating a new, judicially defined right to travel, will be clearly clarified as the crux of the opinion should it hold. The higher court can just defer to stare decisis and judicial restraint on the rest.
AFAIK, it's not a judge that orders the addition to the no fly list, it's someone in the executive branch.
[1] http://en.wikipedia.org/wiki/Due_Process_Clause#Procedural_d...
To your last point, this is likely an issue - can a non-judicial, unelected, non-executive branch agency (I'm a little unsure of if there are agencies that aren't technically executive for Constitutional purposes, but I think most would agree that the FAA doesn't seem like an executive agency) add someone to a no-fly list? Is it civil? Criminal? Or simply regulatory (the agency could try and argue that it isn't being punitive, it just set up eligibility criteria that those on the list did not meet - a really tenuous argument, but it would be logically consistent and open up comparisons to things like qualifying for aid and slippery slope arguments about due process invalidating all those eligibility criteria).
That seems to be overly optimistic. While compensation lawsuits for police misconduct are frequently successful, firing a bad cop is very hard and prosecuting is even harder, due to the enormous strength of the police unions and the notorious "blue wall" which frequently blocks all attempts for investigation.
The Department of State has always reserved the right to revoke/deny passports for all sorts of reasons that are not subject to administrative review.
Don't pay your taxes, no passport. Don't pay your child support, no passport. There have even been cases where passports have been revoked for people who have been remanded to mental institutions. Having had your passport revoked in the past is enough grounds to deny you getting one in the future all of which has passed muster at Supreme Court given State Dept acts with seeming explicit Congressional approval. [0]
You can in principle negotiate with the destination country for a visa and fly non-commercially. Can Google "Gilbert Chagoury" for example. He is wealthy patron of Bill Clinton from Nigeria who has been on No-Fly status for years but still jets around the US and internationally I believe on an UK passport on small planes.
Not saying it is just but that will probably be the legal basis.
This opinion is only a finding of due process. That DHS TRIP is not adequate. DHS will simply remedy that if it comes to it with some just as difficult process as it is getting a passport unrevoked by the State Dept (which is nearly impossible without political favor).
[0]: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vo...
As it stands today (correct me if I'm wrong), a US citizen could be on the no-fly list and be denied the right to board a flight from New York to California. Passports don't even enter into it in this case.
This truly fits the definition of a Kafkaesque system -- you are put on a list and you are denied justice and never told what your crime is.
Great work by the ACLU.
Theres an excerpt of the form here:
http://papersplease.org/wp/wp-content/uploads/2014/02/vgtof-...
Notice how you have to check the box to indicate someone is not to be added to the list. It is completely counter-intuitive. I'd say it is just badly designed, but we're far beyond innocent mistakes here, at this point there needs to be judicial and personal responsibility for the people involved in its creation and ongoing maintenance.
Why isn't it the other way around? Shouldn't they have to prove to a judge that there is reasonable suspicion you are or have been engaged in terrorism before they can interfere in your affairs?
Then there should be a transparent, straight-forward way to challenge it.
I find this to be a minor victory at best. In my opinion, the elephant in the room is that there is a No Fly List in the first place. If someone is deemed so dangerous that they should not be allowed to get on an airplane, they should be in prison. After all, that's one reason why we have prisons: to keep dangerous people away from society. What can such people do on an airplane that they can't do on a bus or a train?
EDIT: Or perhaps it does apply to non-citizens when they are on U.S. soil. I'm not sure.
Whether or not the no-fly list can really be stopped through a normal judicial means at this point, I think that's up for debate given how far the US Government has gone past concerning itself for the rule of law.
http://rt.com/usa/court-upholds-laptop-border-searches-041/
https://www.aclu.org/know-your-rights-constitution-free-zone...
https://supreme.justia.com/cases/federal/us/413/266/case.htm...
Then the ability to simply stop vehicles near the border was curtailed (the ruling still allows a stop given specific information):
Prior to that second case, the border patrol asserted the right to make random stops because they suspected someone in the car was Mexican. The Supreme Court decided they couldn't do that, but they are careful to say that the decision doesn't apply to the border and "functional equivalents".
Doesn't mean it's not shitty, just that it's a different matter than border searches.
There's no human being on Earth so dangerous they can't be safely put on an airplane.
I mean toddlers have to count as either high or insane and probably would try crash the plane if they weren't restrained. Plus imagine how peaceful flights would be ..
By all means, keep the convicted Son of Sam's of this world off my airplane. But somebody that the state finds themselves unable to convict of anything? Give me a break. Either the state can prove that they are dangerous and need to prosecute them, or they need to leave them alone.
I'd think the same thing would occur (or I'd hope so anyway) if a form of influenza popped up that was highly fatal and contagious.
Repeating yourself is actually very important in court opinions. It shows that the court has considered all the case materials, claims, and legal precedent to clearly spell out what all of that means and how they factor into the findings of law.
They're very readable to people trained in the art, or the moderately-engaged passersby. Additionally, courts typically write with narrow margins and/or heavy line spacing.
https://www.aclu.org/sites/default/files/assets/latif_v_hold...