Federal Judge None Too Impressed With Government's Defense Of Its 'No Fly' List

from the we-have-several-reasons;-here-are-none-of-them dept

The top secret “No-Fly” list has been problematic since day one. The DHS and FBI apparently believe over 20,000 people are too dangerous to allow to board a plane but not dangerous enough to arrest.

This is the process the government follows to place would-be travelers on the no-fly list.

1. The government places a person on the no-fly list.

That’s all there is to it. The list is too “sensitive” to publish and exposing its methodology would apparently result in airliners raining down around us.

If you’re a lucky recipient of the “no-fly” designation, here’s how you’re informed of your new status.

1. Purchase a ticket and attempt to travel.
2. Be rebuffed by TSA personnel.

This process can sometimes be applied with more flexibility.

1. Purchase a roundtrip ticket and fly to a foreign destination.
2. Attempt to return home.
3. Be rebuffed by local customs/security officials.

You won’t know you’re on The List until the list is triggered, which could happen when you’re a few thousand miles from home. And if you think you’re boarding the next boat back to the US, think again. The list is also “no-sail,” meaning passenger ships are out of the question.

Now, if you’re on the list and wish to be removed or, at the very least, informed of why you’ve been banned from commercial airline travel, there’s no reason to panic. The DHS has a resolution process that relies very heavily on “process” and skips the “resolution” completely.

Their only recourse is to file a request with the Department of Homeland Security’s “Traveler Redress Inquiry Program,” after which DHS responds with a letter that does not explain why they were denied boarding. The letter does not confirm or deny whether their names remain on the No Fly List, and does not indicate whether they can fly. The only way for a person to find out if his or her name was removed from the No Fly List is to buy a plane ticket, go to the airport, see if he or she can get on the flight – taking the risk of being denied boarding and marked as a suspected terrorist, and losing the cost of the airline ticket.

One wonders what a letter that answers no questions and explains nothing is supposed to “redress.”

Dear Sir/Madam No Fly,

Thank you for expressing an interest in our Traveler Redress Inquiry Program. The Department of Homeland Security works in conjunction with all domestic airports, as well as those in 22 other nations worldwide, in order to provide you with a safe traveling experience. We hope that you will continue to make use of our products and services.

Thank you again for your support.

If you have additional comments or questions, please dial (202) 282-8495.

Sincerely,
The Department of Homeland Security

This decade-long lack of specifics or actual redress has led to the ACLU suing the federal government on the behalf of thirteen no-fly list members.

Thirteen people on the no-fly list have sued the U.S. government, arguing that their placement deprives them of due process and smears their reputation by branding them as terrorists. Several of the men who filed suit have been surrounded at airport security areas, detained and interrogated.

The suit seeks to either remove the plaintiffs from the no-fly list or tell them why they are on it.

Government attorney Scott Risner addressed these complaints by arguing that air travel is not a “right” but a “convenience.”

Risner said placement on the list doesn’t stop people from traveling, and stopping people from using one mode of travel doesn’t deprive them of their liberty. That’s a key question in determining whether the government must ensure due process and one that’s at the heart of the constitutionality of being placed on the list.

“We’re not suggesting that there’s not a convenience in air travel,” Risner said. “(But) there’s no right to travel without impediments. That’s what’s happening here.

Risner went so far as to point out that those stranded by sudden inclusion on the no fly list had made it back to the US via alternate forms of travel, thus “proving” a lack of air travel isn’t preventing traveling.

Unfortunately for Risner, Judge Anna J. Brown wasn’t buying it.

“To call it ‘convenience’ is marginalizing their argument,” Brown said. [She] said alternatives to flying are significantly more expensive. “It’s hugely time-consuming, and who knows what impediments there are between the Port of Portland and other countries.”

She also pointed out that sea and land travel options aren’t suitable replacements for flying, especially when time is of the essence and that the government’s argument “fails to take into account the realities of modern life.”

The DHS and FBI would obviously like everything to proceed the way it has for years, which means convincing the judge that flying isn’t a fundamental right. This removes the question of constitutionality, as least as far as flight restrictions go.

The ACLU has gone further, though, declaring the entire system to be screwed up.

“We’re asking the court to finally put a check on the government’s use of a blacklist that denies Americans the ability to fly without giving them the explanation or fair hearing that the Constitution requires. It’s a question of basic fairness,” said ACLU Staff Attorney Nusrat Choudhury, one of the ACLU attorneys who will argue the case Friday in Portland. “It does not make our country safer to ban people from flying without giving them an after-the-fact redress process that allows them to correct the errors that led to their mistaken inclusion on the list.”

It also points out that issuance of notice and due process are required for much less far-reaching actions.

The ACLU argues that this system violates the Fifth Amendment’s command that the government cannot deprive a person of liberty “without due process of law.” Courts have ruled that the Constitution requires some kind of notice and hearing for far less severe actions, such as losing state assistance for utility bills or being suspended from school for 10 days.

Judge Brown hasn’t said when she’ll issue a ruling, but so far she seems less than impressed with the government’s arguments. In the meantime, 20,000 people, including the 13 US citizens represented here (four of which are military veterans), are still stuck in War on Terror limbo — unofficially “detained” in the US by secretive travel restrictions.

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Comments on “Federal Judge None Too Impressed With Government's Defense Of Its 'No Fly' List”

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70 Comments
Josh in CharlotteNCsays:

“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”
Article IV, Section 2

“Article IV’s Privileges and Immunities Clause has enjoyed a long association with the rights to travel and migrate interstate. The Clause derives from Art. IV of the Articles of Confederation. The latter expressly recognized a right of “free ingress and regress to and from any other State,” in addition to guaranteeing “the free inhabitants of each of these states . . . [the] privileges and immunities of free citizens in the several States.””
Zobel v Williams

jd2112says:

Re: Re: Re: Re:

If they are Ted Kennedy they have enough political clout to have the Director of DHS on the phone within 30 minutes demanding to know why one of his goons is keeping him from getting on the plane and have him personally correct the situation. For everyone else F$@# You, Terrorist!

Skeptical Cynicsays:

Yeah my wife the teacher was and maybe still is on the list.

My wife found out that she was on the list when she traveled to Alaska and then tried to go from Alaska to Canada then to the continental US on the way home because of a stopover on the flight she was taking back to Atlanta.

They told her if she stopped in Canada she would be removed from the plane and detained. She wound up taking a boat from Alaska to Washington state to catch a flight.

Why was she on the watch list? No clue but she was just out of college at a small south Georgia college and had done nothing political (or 7 years later done nothing political) to warrant that.

The only thing we could surmise was she had gotten a check over 10k from the estate of her grandfather.

Still no idea why and we are still afraid to take a vacation that involves travelling outside the continental US. I think that is a bit of liberty deprived.

So I will be following the case.

Jessesays:

Re: Re: Yeah my wife the teacher was and maybe still is on the list.

“No clue but she was just out of college at a small south Georgia college and had done nothing political (or 7 years later done nothing political) to warrant that.”

It’s statements like these that really scare me. How can anyone argue the US is not a police state? I’m not criticizing you personally, but this widely accepted mentality that engaging in political discourse or action can (and apparently does) end with you losing personal liberties should be all the evidence you need of the effects of the current police state.

Elections do not a free society make; ask Iran.

Anonymoussays:

It doesn't seem to occur to anybody

That:

(a) this is a very inexpensive way for a real live terrorist to find out if they’re on anybody’s radar: buy a plane ticket, try to fly. If you’re denied because you’re on the no-fly list: then you know that they know. That’s highly useful intelligence, and acquiring for the price of a plane ticket is a bargain.

(b) that same real live terrorist can use any number of other means of transportation, if they’re really en route to someplace because they have something to do. The only people inconvenienced by this are non-terrorists.

ltlw0lfsays:

Re: Re: It doesn't seem to occur to anybody

It doesn’t seem to occur to anybody That:

(a) this is a very inexpensive way for a real live terrorist to find out if they’re on anybody’s radar: buy a plane ticket, try to fly. If you’re denied because you’re on the no-fly list: then you know that they know. That’s highly useful intelligence, and acquiring for the price of a plane ticket is a bargain.

What kills me is why anyone thinks that a name would stop a terrorist. How many of the 9/11 terrorists used their real information to obtain tickets? From what I’ve seen from various news reports, most of them had assumed names and credentials.

What it does do is open the door wide open to corruption and abuse. Don’t like a competitor, no problem, we can add them to the no-fly list. Hate your ex, not a problem, she can now no longer fly.

The only people inconvenienced by this are non-terrorists.

And that is the crux of the problem.

Vincent Clementsays:

Re: Re: It doesn't seem to occur to anybody

Don’t forget this tidbit:

“Risner went so far as to point out that those stranded by sudden inclusion on the no fly list had made it back to the US via alternate forms of travel, thus “proving” a lack of air travel isn’t preventing traveling.”

This guy is saying that despite matching a name on the no-fly list, people are still making it back to the US. Wouldn’t that include potential terrorists? How is this list keeping America safe again?

Malorsays:

Re: Re: It doesn't seem to occur to anybody

Again, this is part of the systemic protections that are being set up to stop dissent, and to get people used to being searched.

The No Fly List is a lousy tool against terrorists, but it and the other TSA garbage is a freaking great tool against dissidents.

See: Occupy movement. Had the severe beatings not convinced them to go home, this sort of thing would have been next on the list.

That One Guysays:

Re: And the biggest loophole of all:

(c) Once a terrorist has verified that he’s on the watch list due to (a), a simple name change is all that it takes to bypass the system.

Really the ‘no fly list’ idea is ridiculous in so many ways, any wanna-be terrorist dumb enough to be caught by it would almost certainly be too stupid to be a real threat to anyone but themselves.

The Real Michaelsays:

Re: Re: Re: And the biggest loophole of all:

The no-fly list ridiculous on its face because it falsely assumes that a would-be terrorist would only act if they were able to hijack a plane (which would be pretty much impossible given that now they lock the doors and all the pilots are armed). If someone were intent on killing, what’s to stop them from doing so elsewhere? Security is an illusion.

Also, if the no-fly list were really about stopping terrorists from boarding planes then how come political activists and military veterans are among those put on it? One can only assume that it’s a tool abused for purely political purposes.

That One Guysays:

Re: Re: Re: Re: Re: And the biggest loophole of all:

Oh forget the locked doors and armed pilots, what would stop a repeat of 9/11 these days would be the passengers tearing the hijackers to pieces.

Prior to 9/11 it made sense to not cause a fuss and to sit down and wait things out on a hijacking, as a dead hostage is a useless one, so odds are the hijackers wouldn’t harm anyone. Post-9/11 though, when it was made clear there were people willing to kill everyone on board, suddenly everyone knows their life might be in danger, and if you’re going to die for sure if you do nothing, suddenly there’s no real reason not to do everything you can to take out the hijackers.

cradesays:

Flying is obviously not a fundamental right. Having a car isn’t a fundamental right either, neither is having a job. How does that make it ok for the government to ban certain citizens from doing so without providing any reason?

The fundamental right is to be treated fairly and equally, to have the same basic access to services that everyone else has. Can the government take away everything from citizens that they don’t think is a “fundamental right” without disclosing why?

veloxsays:

It seems to me that the No-Fly-List is another example of the unforeseen consequences that have proceeded after the government began twisting interpretations of the Commerce Clause into legal pretzels. Without the idea that the federal government is allowed to do almost anything it wants with respect to “interstate commerce”, it would be hard to see where the US Constitution authorizes it to restrict travel by citizens.

Skeptical Cynicsays:

Re: Re:

Obama-The President of platitudes. Change!!! Hope!!!

I am proud that we as country elected a person of non white origin but sad that we picked someone so dedicated to making sure the government would run our lives. Forever. Slavery is not just a physical state. It is a mental binding and forced life choice that you are not allowed to chose.

What is the Obama care but a loss of choice? Or a forced case of being required to do as the government requires. Prove me wrong. Show me the loopholes?

Ed C.says:

Re: Re: Re: Re:

It would be fair to point out that the No Fly list, like many of these bullshit “security” policies, was created under Bush. Obama mostly continued what was given to him. Which is the very reason such powers should never have been granted in the first place, once granted, they’re almost impossible to revoke.

Bergmansays:

Re: Re: Re:2 Re: Re: Re: Re:

They’re not Right and Left or Conservative and Liberal anymore for the most part.

The main political axis these days is Libertarian and Authoritarian. That’s why so many Republicans and Democrats look so much alike politically. They disagree on which rights need to go first, but they are in complete agreement that rights need to be abolished.

art guerrillasays:

Re: Re: Re:2 Re: Re: Re: Re:

you are a queer duck, mikey…

on the one hand you show signs of a ‘progressive’ (not meant in a dem’rat vs rethug context) mindset, but then revert to your religious mumbo-jumbo on many issues…

just not quite ready to ditch that sky-daddy, eh ?

on this issue, i won’t disagree: to me, they are two faces of the same Korporate Money Party which serves the interests of the 1%…

and, yes, i DO ‘own’ my own body, and -if i were of the child-bearing persuasion- i would not feel one neuron of compunction about flushing a tiny glob of goo from my body at any time before it pokes its head out the portal…

if the choice is between me or ‘it’, then i’m sorry, the goo will be gone…

(and to the anecdote about the mother’s life being threatened by bearing kids, and she did it anyway: i bet there are a HUNDRED stories for every one of those where the OPPOSITE was the result: ie misery for the kids and mothers for having babies they were not mentally, physically or monetarily prepared to raise…)

art guerrilla
aka ann archy
eof

Anonymoussays:

The Federal Judge is Not Alone

It’s fucking madness is what it is.

The sum of insanity of a combined mass mob of freaked out idiots.

If you can’t do your jobs without the threat of a boot on the throat of a citizen then you’re doing it wrong. A secret list of 20 thousand people, a nickel for your ticket and a dime for your time and your crime is secret. And now we’ve allowed them to access the means to swell that list with anyone for anything, anyone that has an interesting algorithm and any algorithm subject to the whims of power, in secret, at any time and with no recourse. That’s a mighty convenient law you’ve got there, would you mind if I try it out? I promise not to break it.

Please.

Anonymoussays:

Re: Re: The Federal Judge is Not Alone

The list is secret. Which actually equates to the list is secret because the source is secret. Further, should someone find out about being on the list and challenge their entry on the list and demand to know why they’re on the list they won’t be able to find out why because that is secret because the source is secret. Anyone that holds the list or is authorized to distribute the list just knows that there is a list and not a single, solitary reason for the presence of any single name. Thus, the list is predominantly an NSA sourced list and the list includes Americans. Americans that would not be very happy about being on that list and should they happen to find out that they’re on that list they would likely never discover why much less how.

There. A whole lot of secreting going on. And now you know why – I can neither confirm nor deny.

(p.s. if I disappear my name is

Edward Teachsays:

Re: Re: Re: Re: The Federal Judge is Not Alone

You win The Prize: the list is secret because the source is secret.

That’s what secret, universal, dragnet surveillance of the citizenry is good for: secret lists and secret laws. Guilt by association in other words.

The whole thing is Highly Un-American. TSA etc should be ashamed of themselves. I call upon all Real Americans employed by the DHS to resign.

Beechsays:

“Risner said placement on the list doesn’t stop people from traveling, and stopping people from using one mode of travel doesn’t deprive them of their liberty. “

Interesting logic. Let me try!!!

“Risner said placement in a secret prison doesn’t stop people from ‘life, liberty, and pursuit of happiness,’ and stopping them from leaving one place doesn’t stop them from being alive, liberated, or pursuing happiness in said prison.”

Anonymoussays:

Actually I think the letters should borrow a page from copyright blocking notices:

Dear Sir/Madam No Fly,

This Traveler Redress Inquiry Program contains security content from The United States of America and MotherFuckingEagles, one or more of whom have blocked your access to redress on grounds that remain classified.

Thank you again for your support.

If you have additional comments or questions, please dial (202) 282-8495.

Sincerely,
The Department of Homeland Security

Anonymoussays:

“Risner said placement on the list doesn’t stop people from traveling, and stopping people from using one mode of travel doesn’t deprive them of their liberty.”

Even if you buy this argument that they are not being deprived of liberty, I would argue they are still being deprived of property, in the form of the airline ticket.

Anonymoussays:

Re: Re:

How could it possibly not be deprivation of liberty?

If I live and breath and can pay for fare by the means that my means will allow how is it not my liberty to choose how I travel for myself. And if I am deprived of that choice how is it that I am deprived without trial?

It is the taking of a natural right – the right to choose.

The rest is bullshit authoritarian behavior and indicative of powers that are clearly out of control.

MikeTheKnifesays:

Re: Re: Re: Re:

Thank you for stating this so I don’t have to. You stated it eloquently but it’s a travesty this needs to be pointed out. I’m disappointed I had to read so far to see a correct response. Everybody should step back and examine how far your mindset has been twisted by the actions of our government over the last few decades. I have no words to describe how important are the rights you’ve surrendered. I am embarrassed for us all.

Jessesays:

I’m not understanding how calling flying a convenience helps their case. So what?

A free society shouldn’t be allowed to prevent citizens from buying diamond rings without some sort of due process, and that is clearly a luxury item. This is kind of a defining quality of freedom, that you can do whatever you want so long as it doesn’t impinge on the freedom of others. Such freedoms can be removed only for good reason and with due process.

That whole “due process” thing is more or less the key part that separates the free from the oppressed…

How easy it is to get a fake ID

First, is it safe to assume the No Fly List doesn’t verify the person’s name against an address or photo? That would explain why Senator Kennedy was detained when it would have been obvious who he was if the TSA agent checked a photo on the No Fly List.

Like so many people are saying, this policy only affects NON terrorists. Like a previous poster mentioned, if someone really wanted to cause harm, they could buy a ticket, go to security, and see if their name is on the list. If no, then they board the plane. If yes, they get a fake ID (ask any high school kid how easy it is to get a fake ID), then go back to the airport. Then it becomes “Okay, you’re not John Smith, you’re Jake Smith. Welcome aboard.”

But what happens when a family is flying home from Europe to the US and the 6 year-old boy has the same name as someone on the No Fly List. Sorry, he’s a terrorist and the family can either fly without her or not fly at all. (Though in reality, the family would probably be detained and interrogated for traveling with a terrorist on the No Fly List.)
The family doesn’t have the resources of a bad guy and they’re not going to go get some fake ID’s, especially if they’re on their way home from a vacation.

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