Court rules no-fly list is unconstitutional


 Last time we visited the infamous "No Fly List," a federal judge (Anna J. Brown) wasn't buying the government's arguments in favor of preserving the list's lack of transparency or redress options. The ACLU, arguing on behalf of 13 list members, pointed out that the system violates citizens' (there are more than 20,000 names on the list) right to due process.

As if being on the list and having no way to be removed wasn't enough of a problem, the government made it clear it believed air travel and international travel in any form were luxuries granted by the State. The government's argument was Marie Antoinette-esque in its dismissive simplicity: let them drive cars.

During deliberations, Judge Brown swiftly undercut the government's argument that air travel is nothing more than a "convenience."

"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."

The government apparently failed to make any further inroads at impressing the judge over the past couple of months. The ACLU announced today that the federal court has found in its favor.

A federal court ruled late yesterday that constitutional rights are at stake when the government places Americans on the No Fly List, agreeing with the plaintiffs in a lawsuit filed by the American Civil Liberties Union. The suit challenges the process for attempting to get off the list as unfair, inadequate, and unconstitutional. The decision also asked the ACLU and the government to submit additional information about the No Fly List redress procedure in order to help the court decide the ultimate question of whether it satisfies the Fifth Amendment's guarantee of due process.

We'll likely be waiting quite some time for the government to get its input together, if other TSA-related input-gathering efforts are any indication. As it stands now, the so-called redress procedure offered by the DHS is a pointless waste of paper for everyone involved. Here's that procedure in all its glory.

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.

That's not due process. That's a form letter awaiting a name to insert between the placeholder brackets.

In her ruling, Judge Brown reiterated the her problems with the government's insistence that air travel is a "convenience."

"Although there are perhaps viable alternatives to flying for domestic travel within the continental United States such as traveling by car or train, the Court disagrees with Defendants’ contention that international air travel is a mere convenience in light of the realities of our modern world. Such an argument ignores the numerous reasons an individual may have for wanting or needing to travel overseas quickly such as for the birth of a child, the death of a loved one, a business opportunity, or a religious obligation… the Court concludes on this record that Plaintiffs have a constitutionally-protected liberty interest in traveling internationally by air, which is affected by being placed on the list."

This is good news for the 20,000 unwilling participants in the DHS's no-fly program. I would imagine the government will be appealing this decision as any changes to its (lack of) redress process will probably cause "grave damage to national security," especially as it will now require the DHS to divulge some sort of actual information as to why Person A is on the list.

More likely the real reason for this opacity is to prevent the public from recoiling in horror at the briefest peek into the crafting of War on Terror™ sausage -- a process that seems to involve running a variety of amendments through the grinder along with handfuls of tax dollars. This win is a small push back against that apparatus and stakes another one of ACLU's flags into a chunk civilly liberated territory.

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