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Federal judge rules U.S. no-fly list violates Constitution (reuters.com)
287 points by Shivetya on June 24, 2014 | hide | past | web | favorite | 83 comments

This seems like the right decision to me. Being blocked from air travel is indeed a violation of liberty.

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.

The funny thing is we just had this trial in 2010 and lost. I suspect 9/11 hysteria is dying down, so now we can have real adult conversations about things like this.

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.

I don't think it's just "9/11 hysteria dying down" - post-Snowden, people are a lot more willing to accept that our government is abusive towards its own people, and thus it's harder to just wave off questions of the no-fly list with "well they're just doing what's good for us".

>> Being blocked from air travel is indeed a violation of liberty.

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.

A follow up on due process, from Wikipedia: notified of the accusations, to confront the accuser, to obtain witnesses and to retain counsel.

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).

It's not pedantic. Liberty is definitely one of those rights that isn't 100% clear. The law is sometimes unfair/rough when it comes to balancing the rights of the individual against the rights of the state to protect against terrorism (real or perceived).

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.

>> 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.

Great big IANAL here, but isn't due process something only the judicial branch can do? Do the police (i mean, the executive branch) get to strip liberties all willy nilly, and then you have to go to court to get those liberties restored?

AFAIK, it's not a judge that orders the addition to the no fly list, it's someone in the executive branch.

Due process encompasses everything involved in the enforcing of the laws and regulations - from how evidence is collected to having your Miranda rights read to receiving notice. And yes, should the police strip you of your due process rights, your only recourse is to go to court (or flee the police, which opens you up to other problems). You'd likely get compensation for it though, and the police would be severely punished as a deterrent to future abuses.

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).

>>> the police would be severely punished

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.

Sorry, didn't mean to imply that this is what happens. Just that by design, it's what should happen (I was addressing a specific comment who posed a hypothetical). Your recourse to having your rights forcibly removed by police is to take it to court, where punishment will ideally be administered to fit the violation.

Due process is a guarantee made to citizens. The form it takes or method it is delivered by is not overly specific, and there is nothing about it that mandates it be scoped to one particular branch of government. If it's the executive branch handing down restrictions of liberty, well then I guess it's the executive branch that is responsible for ensuring due process.

The courts always have a role to play when another branch has overstepped its powers, such as is the case here.[1] The administration must not abridge any rights, but it does so frequently (and is not held 'responsible' in any meaningful way), when this is the case, the judicial branch is responsible to ensure that the person affected does not suffer for it.

[1] http://en.wikipedia.org/wiki/Due_Process_Clause#Procedural_d...

Freedom of movement is a human right. There is no real way to equivocate that without arguing in favour of a police state.

This will probably not survive review.

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...

We're not talking about passports, we're talking about air travel.

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.

What no-fly list has to do with passports? There are many people routinely flying in the US who don't have and never had US passports. E.g. all tourists, resident aliens, etc.

Does this ruling imply some sort of "right to travel"?

From the article it seems like the judge has said that the right to freedom includes the ability to travel out of the country or across country. It's just not reasonable to require some segment of the population (500-20,000 people) to take a boat to go to Europe, with no trial or ability to appeal. Movement is restricted.

It doesn't seem like a right on it's own, so much as included in the existing right to "liberty". My 2 cents.

Yes. In the ruling, the Court "has concluded Plaintiffs have a constitutionally-protected liberty interest in the right to travel internationally by air".

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:


This looks accurate. In this case, it looks like the court relied both on precedent, the Constitution, and finding a new right. For purposes of appeal, my guess is the decision is upheld, while declining to accept the first justification of the ruling. The second point the decision relies upon is a pretty strong one, in my opinion.

It's not really implied by this. It's one of the rights guaranteed by the constitution.

>> It's one of the rights guaranteed by the constitution.

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).

This case has nothing to do with freedom of speech, it's to do with the Fifth Amendment in the Bill of Rights. And it's not that the plaintiffs were deprived of liberty, it was that they were deprived of liberty without due process of law.

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.

That's incorrect if the linked article is correctly quoting the binding portion of the decision. If the decision relies on a right to travel, it's almost certainly going to rely on the 1st Amendment. If what I suspect happened, which is the article quoted dicta addressing issues raised, but not necessary to the ruling, then you are correct, it's entirely a due process issue. The former is highly vulnerable to appeal, the second, drastically less so.

The ruling does seem to imply that, however, on appeal, that will almost certainly be clarified. No judge would actually argue for a right to travel so broadly defined that it would essentially remove all regulatory power over who can and cannot fly. The ruling will likely be clarified for precedent to mean that the right to due process includes a right to quickly and effectively contest designations by government agencies in the absence of formal charges of violating a law.

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.

No judge would actually argue for a right to travel so broadly defined that it would essentially remove all regulatory power over who can and cannot fly.

Why not?

Because judges are hesitant to make such sweeping redefinitions of established law. Not that it doesn't happen, or taking a position on whether it's optimal, but it's incredibly uncommon, and generally frowned upon by the judicial and legal community. Even the most ardent judicial activists tend to favor change by increment.

There's nothing implied. The Court flat out says that denial of international air travel is a deprivation of liberty.

Does anyone have a link to the actual decision? Upon rereading, the article certainly makes it seem as though the crux of the ruling was around a denial of international air travel is a deprivation of liberty, but were I the appealing attorney, that would be fantastic news. That's a major change in the permissiveness of the word liberty, and would open up infinite slippery slope arguments. I'd bet on that logic failing on appeal.

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.

Find it here. Deprivation of liberty is not the whole issue, it was a problem with lack of due process, of which deprivation of liberty is but one part.


I summarised the case in this comment:


I always assumed the right was implicit. (Potentially ignorant US citizen here)

Well it gets muddy when it isn't just walking around. For instance, most states require that you consent to a breathalyzer test or your license is revoked. Somehow the Fourth didn't apply in those cases.

Actually, being blocked from international air travel is considered to be a deprivation of liberty.

"The 13 plaintiffs - four of them veterans of the U.S. military - deny they have links to terrorism and say they only learned of their no-fly status when they arrived at an airport and were blocked from boarding a flight."

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.

Well, in many cases there is no crime. Given the ridiculous amount of people on the list and the way the form is designed, a large number will be on there due to a "mistake" in filling out the form.

Theres an excerpt of the form here:


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.

Apart from the cognitive difficulties this creates, forcing you to check the box means the default is to add someone to the no-fly list (see Dan Ariely's research)

The court raises issues of quality assurance in their discussion of the issues surrounding the case. They noted the issues but made no judgement, but it seems likely to me that the Court wasn't very impressed.

Only made worse by the fact that they gave a few of what is for most people the most productive years of their lives to defend it.

>> individuals listed under the policy may ultimately petition a U.S. appeals court directly for relief

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?

You're absolutely correct. They should have to provide evidence proving legitimate concerns about the person in question, preferably to a civilian judicial court that is public, and each person has to be manually confirmed to be a danger and then put on the list.

Then there should be a transparent, straight-forward way to challenge it.

Guilty until proven innocent.

The title is a bit misleading. The judge did not rule that the No Fly List itself is unconstitutional. The government can still have such a list and put you on it. The only difference is that they now have to notify people as such and provide reasons as well as easy ways to appeal your inclusion.

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?

The ruling only applies to U.S. citizens. As mentioned in the article, the vast majority of people on the list are non-citizens.

EDIT: Or perhaps it does apply to non-citizens when they are on U.S. soil. I'm not sure.

The Constitution applies to anyone within the US, citizen or not.

More accurately, the U.S. Constitution applies to the US government, not to the people it interacts with. Some of its rules are preconditioned on dealings with certain classes of people, however, so citizenship is sometimes relevant to Constitutional considerations.

Yes that is an important clarification. Thank you.

Yes in most cases it applies to all US residents. But many don't apply to non-residents who still live in the US. For Eg: international students.

Do you have an example? I'm not saying you're wrong, I just can't think of anything off the top of my head that wouldn't apply to an international student. The second amendment comes to mind, but there are Alien Firearms Licenses available.

I do not believe a judge currently has to authorize someone's placement on the No Fly List, which right away raises red flags. So the No Fly List is definitely unconstitutional as it is currently implemented, but I wonder if it would be replaced a constitutional implementation. For instance, if FBI, CIA, or NSA had to clear a probable cause legal hurdle in order to place someone on the list, and if a judge, rather than the TSA, had to approve their placement, then the program might be constitutional. The proceedings might have to be secret, so the no fly list would function like some NSA programs that I know folks here are so fond of (note: sarcasm) - but at least it would involve the judiciary rather than giving the executive branch carte blanche to prohibit anyone it deems suspect from travelling.

I'm pretty sure such a constitutional implementation already exists: namely, they can just revoke your passport, which I think has to go through due process.

You don't need a passport to get on a domestic flight, though - so there's a blind spot for existing law.

It certainly does!

Very welcome news. I hope it will have a positive impact on cases like http://www.papersplease.org/wp/category/freedom-to-travel/

At a minimum challenging these systems is a good thing. Most were put into place with zero debate, no serious judicial challenges, and zero input from the general public (whom they have the greatest impact on).

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.

Now if only we'd get a similar ruling for no-warrant "border" searches, where border can mean tens of miles from the actual border.

Apparently it has been asserted that this special border region extends inward 100 miles from borders and coastlines. This swath includes around 2/3 of the US population.



Youtube has got some great videos of people enforcing their rights at these stops.

That happened in the 1970s:


Then the ability to simply stop vehicles near the border was curtailed (the ruling still allows a stop given specific information):


Curtailed? I can personally confirm that as of just a few years ago, all vehicles passing various roadblocks in southern Arizona and New Mexico (including one across an entire interstate) are stopped and questioned. I assume this continues today.

Did those check points match the ACLU description or were they more like a temporary border stop?

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".

The validity of checkpoints has been upheld as long as they stop all cars and only look in the windows and ask for license/registration. It's used everywhere for DUI policing, not just immigration checks.

Doesn't mean it's not shitty, just that it's a different matter than border searches.

The US needs to rewrite some of that amendment stuff. It clearly sucks.

About time.

There's no human being on Earth so dangerous they can't be safely put on an airplane.

I might question that statement. Being a passenger on an airplane requires you to accept a certain amount of responsibility. A person unable to behave properly and/or refrain from harming others in some way (angry, drunk, high, insane, actively trying to crash the airplane, physically abusive, having a communicable disease, etc) should probably be banned from air travel until their behavior and/or ability to harm others can be controlled.

Hows about children? Seeing as they legally they can't accept any amount of responsibility - can we ban them too?

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 ..

Children don't have to accept legal responsibility, parents do that for them in most instances. So your point is nullified.

I have never smoked in my life, and I don't plan to, but did you just put people that are high in the same bucket as drunks and insane people? They are very different types of people.

Marijuana isn't the only drug that gets you high. He was using "high" in the sense of other, more harmful drugs that completely distort your reality and can cause you to become violent. Remember the bath salt incidents a while back?

Getting high isn't just limited to smoking marijuana... There are a huge array of substances that could cause safety concerns for passengers on an airplane.

"high" doesn't imply only marijuana. I would prefer to not be on the same airplane as someone who's just consumed a large amount of methamphetamines, or LSD, or cocaine.

I mean it generally, high as in "people who can't control their behavior due to recent drug use". If you know someone who just ingested "a bunch" of LSD, should that person be on an airplane for 8 hours? Can they control their behavior and not be a nuisance to others or difficult for staff to give instructions to?

I'll point out that someone who is high on marijuana could be a potential hazard during an incident, although may be less likely to cause one themselves.

I think your statement requires a slight modification: There's no human being on Earth who is not guilty of any crime that is so dangerous that they cannot be safely put on an airplane.

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.

People guilty of crimes should be tried and prosecuted. Judges should impose the sentence, and for serious crimes that probably includes a jail sentence which is the ultimate restriction of movement. If that also includes restricting their international movements as part of their sentence, fine. But simply having been at one time convicted of a crime should not automatically banned from air travel.

Yes, quite right.

It is no crime to have a highly airborne-communicable disease, but it is dangerous to be on an airplane with one.

Anybody with a disease that would warrant forbidding them from getting on an airplane is presumably being legally forcibly isolated/quarantined anyway. If not, then I see no problem allowing them on the airplane; the common flu is a "highly airborne-communicable disease", but we certainly don't stop people with the sniffles from flying.

I think the idea there is that those with diseases like drug-resistant tuberculosis should be prevented from flying because of the risk it presents to other passengers. It's really a matter of degree: While both diseases can kill, and certainly influenza is far more virulent, you're less willing to take a risk with a diseases that's difficult to treat (if treatment is even successful) and is infectious.

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.

"Brown wrote in her 65-page ruling." 65 pages! They need some good programmers to help them refactor that to be shorter, more expressive, more readable, and changeable using the DRY principal and such.

using the DRY principal and such

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.

It appears to be 38 pages. And actually it's very readable:


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