
The Constitution Applies When the Government Bans Americans From the Skies - ahmadss
http://www.aclu.org/blog/national-security-racial-justice/constitution-applies-when-government-bans-americans-skies
======
DanielBMarkham
_Our brief highlighted the utter irrationality of the government 's No Fly
List procedures. The plaintiffs in Latif all flew for years without any
problems. But more than two years ago, they were suddenly branded as suspected
terrorists based on secret evidence, publicly denied boarding on flights, and
told by U.S. and airline officials that they were banned from flying¾perhaps
forever._

One of the reasons that I'm not too attached to the specific details of the
Snowden story (aside from supporting him, of course) is that it's just a piece
of a much larger picture. Snowden's "NSA direct server access" is but a tiny
speck in an ocean of civil liberties problems.

In this case, the government is effectively using a quasi-military/police
force to control who can travel the country. (Yes, I know you can drive, but
for business travelers, air travel is many times the lifeblood of their work)
People are banned from traveling, in many cases from performing their
livelihoods. They do not know how they got on the list. They cannot get off
the list.

In charge of all of this is an agency, best I can tell, that has a mission of
making all _transportation_ safe from random terror attacks.

It's insane. Aside from not protecting anybody, can you begin to imagine the
ways such a system could be abused? It staggers the mind.

There are probably around 100 people in the entire country that shouldn't fly.
But the way this no-fly list is constructed, it will continue to increase
year-by-year, without any incentive to pare the numbers back. Is anybody doing
the math on the kind of economic impact such a system will have over a few
decades?

I've said it before. We need to completely disband the TSA. Structural
adjustments are not going to fix its scope creep, conflict of interest with
the military industrial complex, and lack of competence. It's just gotta go.

~~~
jtome
I've always thought of no-fly lists as completely out of place in a democracy.
Either you have enough evidence to charge them with something or you have no
business restricting them from doing anything.

~~~
chc
I'm not sure this principle works in reality. It seems to entail that somebody
who fails their driving exam must still be allowed to drive and that somebody
with no training should be able to advertise himself as a surgeon.

(Just in case anybody didn't follow the above: Failing an exam or lacking
training are not crimes you can be charged with, so under the principle
"Either you have enough evidence to charge them with something or you have no
business restricting them from doing anything," we have no business
restricting anyone from doing anything on those bases.)

~~~
shpxnvz
> It seems to entail that somebody who fails their driving exam must still be
> allowed to drive and that somebody with no training should be able to
> advertise himself as a surgeon.

Yes, it absolutely does. Life as a free person is dangerous, and being free
necessarily means not being protected from potential harm caused by others. It
means people are held responsible after the fact, but not restrained prior.

~~~
chc
If that's what you think, you are welcome to your opinion, but I don't believe
you'll find a lot of popular support for the idea that unlicensed drivers and
fake surgeons are things we should embrace.

~~~
talmand
I don't see freedom requiring to embrace such things. Freedom doesn't mean you
can do anything you feel like doing, that's anarchy. Freedom means you can do
whatever you like that does not infringe upon the rights of the person next to
you. You can't make other people slaves to your freedom.

The difference I would say about your examples is that the actions of those
people will potentially infringe directly upon the rights of others so there
is probable cause for prior restraint. But even in those cases you can point
out that the person wishes to perform a singular direct action without
adequate training on another person that will most likely result in the
harming of that person. You are at least accusing that person of wanting to do
something that will likely be bad, with evidence to back it up, since
performing surgery without training is a bad idea. I'm sure you can find
examples of why it's a bad idea.

I would see that as quite different than preventing a person from boarding an
aircraft with absolutely no evidence or, in some cases, even an accusation of
any wrongdoing.

~~~
chc
Why does a person on a public road infringe on rights but not a person on a
plane in public airspace? In both cases, the idea seems to be "You can't use
this public conduit if we believe you'd be an unreasonable danger to the other
people around." Neither requires a trial.

~~~
talmand
Because they are two very different things.

When driving a car you are the operator and need to show you can do so safely
without harming others on the public road. You are not required to have a
license to be a passenger in a car on a public road.

When flying in an aircraft you are a passenger and therefore no license is
required. But be assured that guy up front flying the airplane has his pilot's
license that shows they are capable of doing so safely.

When you are restricted from driving on a public road due to lack of a license
that is society actively accusing you of being a danger to everyone else. The
issue you are trying to compare this to are people being on a no-fly list that
don't know why they are on this list and no one will tell them.

That's the main difference, the accusation. If the police were confiscating
driver's licenses from people and forcing them to walk instead of driving
without explanation, then that would be the same thing.

Now, if you have a history of attempting to bring down airplanes while in
flight while you were on board, then they could rightfully restrict you from
entering any other planes. At least in that case there's the accusation.

But I don't understand your thought of being restricted without trial as a
strange concept. It's done all the time. Try to enter a restricted government
building or a military base without permission and see how far you get. Even
better, enter a stranger's house and see what happens. There are numerous
restrictions in a free society that in essence helps maintain that freedom.
Assuming that these restrictions are placed equally on everyone then that
person next to you is restricted from doing things to you that you won't like
just as much as you are restricted from doing them to him.

Of course, these restrictions can get oppressive and abusive if allowed to get
out of hand.

------
gambiting
As a person coming from a former Soviet republic - it reminds me of times 30
years ago, where the usual conversation with any official would look like this
:

"no"

"why?"

"because the government says so"

No trial, no hearing, someone somewhere in secret made the decision and you
had nothing to say in that matter. Or if you tried, you would be charged with
interfering with government business, or "national security" and jailed for a
random amount of time.

Really that different to what the US government is doing right now?

~~~
ajross
Obviously it's not different in principle, but in practice there are
comparatively few people on the no-fly list, and the no-fly list is a
comparatively unique mechanism. US citizens aren't typically prohibited from
travelling, or corresponding with internationals, or publishing journals and
notes, etc...

Yes, this is bad. Yes it should be fixed. But let's check the "ZOMG WE'RE IN A
COMMIE GULAG!" hyperbole at the door. The less seriously we take this the more
reason the government has to pick the "sane compromise" position which
involves no-fly lists and universal-but-mostly-invisible surveillance.

~~~
ctdonath
The problem is such hyperbole is the only thing standing in the way of a
system going that far. There are a great many normalized restrictions now
which were ridiculed as commie gulag fodder not long ago, restrictions which
not long ago would have been met with rebellion.

Billions of people have lived in "commie gulags". Most of them could still
live their lives, and normalized any limitations they lived under. Stay within
those "reasonable" restrictions, and you'd be OK; suggest breaking down those
restrictions, and you'd be subject to the wrath of other citizens ridiculing
your "hyperbole".

The "sane compromise" is standing by core principles. We learned to institute
such principles as foundational law precisely because "sane compromises" and
"mitigating circumstances" went very, very bad; if we deviate from them again,
we will again learn - the very hard way - why those principles were enshrined
in the first place. If the government decides you should be prohibited from
doing X, a warrant must be approved by a judge, the restriction presented you
in no uncertain terms, your accusers available for questioning, a court
available for redress of grievances, and means for acquittal possible
involving a jury of fellow citizens - not some secret list you can't even see
to confirm whether your name is in fact on it.

~~~
ajross
I don't understand how inaccurately comparing living with a no-fly list to
life in the USSR has anything to do with "standing by core principles". If
anything it rather sounds like the opposite.

Stand by your principles. Don't spin the argument.

~~~
ctdonath
Core principles: evidence against me must be obtained under warrant, presented
in court with my notification, subject to challenge, evaluated by a jury of
common citizens, and the verdict subject to appeal. This is absolute front-
and-center core principles of our government.

A secret list limiting travel by common means, with no more visibility than a
bureaucrat's perfunctory "you're on the no-fly list, go away", with no way to
confirm or challenge it, is absolutely a hallmark of life in the USSR.

It's not spinning the argument. It's the point of the argument.

~~~
stonemetal
_A secret list limiting travel by common means, with no more visibility than a
bureaucrat 's perfunctory "you're on the no-fly list, go away", with no way to
confirm or challenge it_

Completely untrue, the ACLU has gotten several people off the no fly list,
used FOIA requests to gain access to it, etc.

------
bediger4000
This is so un-American I can hardly believe that anyone in the USA would do
it. Where's the due process? Where's the confrontation of the accuser? Where's
the ability to redress a wrong?

This is so wrong on so many levels of Americanism. It's just Soviet, that's
what it is.

~~~
interstitial
The word un-American does not apply to a nation of cowards.

~~~
skylan_q
But... but... their gunna take are guns!!!

No. They won't. That's because not a single shot will be fired in retaliation
to government intrusion and control. Not a single thing will be done about it.

------
run4yourlives
The US is a lost cause for anyone on the bad side of the government for any
particular reason, crimes committed or not.

What really gets me though is that people are truly shocked that the piece of
paper held up as some illusion of rights is, like everything else, simply not
worth the paper it is printed on.

This is a document that has been used to justify slavery, prohibition, woman
as property, Jim Crow laws, the "sanctity" of marriage etc. If history shows
us anything it is that regardless of whatever is written down, the laws of the
land will be made by the popular opinion of those that have power, and how
they interpret things. The USA is no different than Rome, feudal Europe or
France under Napoleon, despite the best intentions of its founders.

~~~
mtgx
What annoys me most is that while Brazilians and Turkish people are willing to
start revolutions over seemingly unimportant things, Americans aren't willing
to even protest (in the streets, like real protests are done) these things
which seem much worse.

~~~
shpxnvz
I'm curious what purpose you see for protests in a representative democracy?
It is not intended that our government make law to suit small groups of very
vocal people, but rather that the will of the people be expressed, through
equal representation, by elected members of government.

Obviously our system does not quite work as intended, but I'm not sure I see
how protesting in the street could be effective, or if it was effective how
that could be a feature rather than a bug?

~~~
ianterrell
Protests serve the same purpose as newspapers, blogs, Facebook pages, Twitter
feeds, phone calls, letters, etc: they're for communication.

You might not be able to afford that billboard on the street corner, but you
can afford to stand there with signs and still attract attention. Protesting
is mass communication for time instead of communication for money.

Personal example: Nearly every time I've seen a group of picketing workers
outside an office building has been the first I've heard anything of their
employers' practices. Even if I might care as a customer, why would I know
about it?

~~~
shpxnvz
> Protests serve the same purpose as newspapers, blogs, Facebook pages,
> Twitter feeds, phone calls, letters, etc: they're for communication.

Interesting point. In that respect, isn't the media coverage and outcry on the
internet accomplishing the same thing?

> Personal example: Nearly every time I've seen a group of picketing workers
> outside an office building has been the first I've heard anything of their
> employers' practices. Even if I might care as a customer, why would I know
> about it?

I hadn't considered this case, and you're right that it can serve a purpose
locally.

Instead of an example like that, when I hear protest I tend to think first of
political gathering, e.g. the Occupy protests, which appeared to be more an
example of special interests trying to spur legislative action than a method
of communication.

------
will_brown
I hate to make such a prediction, but this case is factually analogous to the
ACLU's case against the targeted killings of US citizens without due process
and ACLU's demand the standards of the kill list be disclosed. If a citizen
can have his life taken without due process, it seems consistent a citizen's
Constitutional Right to travel can be taken without due process. For those
that do not know:

"On August 30, 2010, the [ACLU] filed a "targeted killing" lawsuit, naming
President Barack Obama, CIA Director Leon Panetta, and Secretary of Defense
Robert Gates as defendants. They sought an injunction preventing the targeted
killing of [a US citizen], and also sought to require the government to
disclose the standards under which U.S. citizens may be "targeted for death".
Judge John D. Bates dismissed the lawsuit in an 83-page ruling, holding that
the claims were judicially unreviewable under the political question doctrine
inasmuch as he was questioning a decision that the U.S. Constitution committed
to the political branches."

Coincidentally, or likely not coincidentally Judge John D. Bates, is also the
presiding Judge of the FISA Court as shown in the Rules of Procedure for the
Foreign Intelligence Surveillance Court (See:
[http://www.uscourts.gov/uscourts/rules/FISC2010.pdf](http://www.uscourts.gov/uscourts/rules/FISC2010.pdf))

I do not agree, but at least the US government has an argument that by
disclosing publicly known or suspected terrorists, it may jeopardize our
national security interests. How the hell can that be logically extended to
the idea that disclosing the criteria to get on the "kill list" or "no fly
list" jeopardizes our national security interests?

------
jdp23
Just a reminder, the deadline for comments on the TSA's body scanners is
Monday.
[http://www.regulations.gov/#!docketDetail;D=TSA-2013-0004](http://www.regulations.gov/#!docketDetail;D=TSA-2013-0004)
has the info.

------
blackaspen
Soon though(thinking of PRISM), they'll be able to say you landed yourself on
a No-Fly list because of a joke you cracked in an email you sent to your
friend ten years ago that they only just mined now. (And a joke that their
algo/analyst didn't understand)

And then they still won't let you appeal it. I wasn't aware though that No-Fly
extended to boats, that makes it criminal. The only way to get off the
continent then is to go to Canada or Mexico (or another SA country) and hop on
a non-US associated airline. _That_ is criminal.

------
mapt
"Back in September 2003, the American Legislative Exchange Council (ALEC)
released a piece of model legislation it called the Animal and Ecological
Terrorism Act. Like so many bills drafted by the free-market think tank, AETA
was handed over, ready made, to legislators with the idea that it could be
introduced in statehouses across the country with minimal modification. Under
the measure, it would become a felony (if damages exceed $500) to enter "an
animal or research facility to take pictures by photograph, video camera, or
other means," and, in a flush of Patriot Act-era overreaching, those convicted
of making such recordings would also be placed on a permanent "terrorist
registry."

Frustrated by unauthorized documentaries of slaughterhouse abuses, the
agriculture industry hired corporate lobbyists to hire Congressmen to insert
laws that would ban PETA activists from using the US air transportation
system.

These have been implemented in a number of states recently, although I'm not
sure if any of them included the watchlist provision in the final draft.

* [http://www.motherjones.com/environment/2013/06/ag-gag-laws-m...](http://www.motherjones.com/environment/2013/06/ag-gag-laws-mowmar-farms)

~~~
prsutherland
Would drones be considered a loop hole here?

------
cpursley
It's interesting to sit back and realize that the libertarians were right all
along. On security theater and the bailout economy.

~~~
prof_hobart
But being right about the problems isn't automatically the same as being right
about the solutions...

~~~
McPants
Being right about the problems is the first step. I would argue providing a
bad solution for a problem you know exists is better than providing a good
solution for a problem that doesn't exist.

~~~
prof_hobart
And I would disagree.

Doing the wrong thing for the right reason seems in general to be worse, at
least in terms of outcome, than doing the right thing for the wrong reason.

Can you give any examples of where you think this isn't the case?

~~~
McPants
My point was more along the lines of it is wasting time. If you do something
bad for the right reason and then later find out it is bad then at least you
know that solution was the issue and you can try a different solution next
time.

If you do something right for the wrong reason then you have absolutely
nothing to learn from and have made no progress at all at finding the correct
solution for the problem at hand.

~~~
prof_hobart
But you could well have done a huge amount of damage before you realise it's
the wrong solution. History is full of examples of identifying a problem and
putting an entirely inappropriate, and damaging, "solutions"

\- the Russian monarchy is bad, let's put a "Communist" dictatorship in place
\- 1930's German farms can't support its people, let's invade Eastern Europe
\- modern Britain can't afford to pay for all of the hospitals/schools it
needs right now, let's pay the private sector to build them for us, keep
paying for them for the next 20 years and then find out that we own none of it
\- terrorists sometimes communicate on the internet, let's bug everyone's
conversations

etc, etc.

------
3pt14159
[http://en.m.wikipedia.org/wiki/Passenger_Protect](http://en.m.wikipedia.org/wiki/Passenger_Protect)

At least the Canadian one allows you to protest. As a result only about a
thousand people on the list.

------
jtbigwoo
They can't even get on a boat to cross the Atlantic.

Does anybody know if other countries reference the U.S. no-fly list? Could one
of these plaintiffs drive to Canada and travel abroad that way?

~~~
omarali
Canada has it's own version of the no fly list which includes data from the US
no fly list.

[http://en.wikipedia.org/wiki/No_Fly_List#No_fly_lists_in_oth...](http://en.wikipedia.org/wiki/No_Fly_List#No_fly_lists_in_other_countries)

~~~
a3_nm
I would imagine that travelling through South American countries would be a
better option (ie., the only option).

------
guelo
I sometimes wonder how the authoritarians that come up with these policies can
look at themselves in the mirror and call themselves patriotic Americans.

~~~
trobertson
They don't. They don't need to. This idea of a 'patriotic American' is
propaganda. A complete and utter fabrication. It's a tool used to divide the
American populace into opposing factions: those are patriotic, and those who
are enemies of the stats.

It's a remarkably similar tactic to what the Nazi's used [1]. The Nazis
attempted (and succeeded) in demonizing anyone who didn't agree with their
ideals. That's basically what our politicians are doing: demonizing anyone who
is 'not a patriot', 'against national security', 'disagrees with American
Exceptionalism'.

Also, to those who will inevitably think 'Godwin's Law': thank you for
derailing a legitimate comparison.

[1]:
[https://en.wikipedia.org/wiki/Nazi_propaganda#Themes](https://en.wikipedia.org/wiki/Nazi_propaganda#Themes)

------
omarali
Is it possible for someone on the no fly list to join the lawsuit? I know two
US citizens who are on the list.

~~~
ahmadss
don't know, but you could probably email the lawyers that wrot e this blog
post and find out. contact information for various ACLU lawyers is listed in
the filing [1] found on the blog post.

[1] [http://www.aclu.org/national-security/latif-et-al-v-
holder-e...](http://www.aclu.org/national-security/latif-et-al-v-holder-et-al-
aclu-challenges-government-no-fly-list)

------
frisco
I'm interested to see how the Tea Party deals with these issues. It could be a
huge opportunity for them... As crazy as they are, if they take up the mantle
of getting government out of peoples' personal lives, it could propel them
into legitimacy. I'm _this_ close to deciding that this is a vote-deciding
issue compared to abortion, fiscal policy, or foreign affairs. Democrats, take
note.

------
Tycho
Can I coin a new political term: terrorismism. It is the enlargement of all
state powers over its citizens in the name of fighting terrorists.

~~~
dragonwriter
Interestingly, the enlargement of state powers over its citizens in the name
of fighting (boogeyman of the day) is exactly what gave "the Terror", and its
architects the original "Terrorists", their names.

So, "terrorismism" is just classical Terrorism.

~~~
Tycho
Who were the classical terrorists?

~~~
dragonwriter
The word "Terrorism" was coined based on the express philosophy behind the
Reign of Terror in revolutionary France.

------
grecy
It appears people are agreeing this (and other) actions by the government are
unacceptable.

So what are Americans doing about it?

We see people in Turkey, Brazil and many other parts of the world protesting
against their government, while those in the US appear to be doing nothing.

What's it going to take?

------
jstanley
This is outrageous. This is contagious. So futile.

~~~
PavlovsCat
I do love angry art. It can be just as pretty, if not sometimes prettier, than
normal art.

------
Vivtek
"There are alternatives to flying".

Try driving to Puerto Rico or Hawaii.

------
Fuxy
Welcome to the United Prisons of Americal where the only thing preventing you
from being forced to walk to your destination is the fact that using a car is
still legal... for now.

------
InclinedPlane
It's good to see that in the 21st century there are at least some areas of
daily life that haven't been pushed into a constitution free zone through
technicalities.

------
trippy_biscuits
Ever since they decided that they had the right to look at or touch my
privates before I can get on a plane, I refuse to fly.

------
danielweber
The use of the word "Blacklists" for "No-Fly Lists" in the headline is
confusing.

~~~
jnbiche
What exactly do you think a No-Fly List is? The use of the word "blacklist" is
entirely appropriate.

~~~
danielweber
Before the headline changed, it was asking if the NSA could "blacklist" people
without telling them what.

Given the context of no-fly lists, you can see what that's about. But without
that context, you are wondering just what in the world it means. Are those
people not allowed to be Americans?

