Thursday, August 29, 2013

Federal Judge Rules People on No-Fly List Have a Constitutional Right to Travel

Nusrat Choudhury

A federal court took a critically important step late yesterday towards placing a check on the government's secretive No-Fly List. In a 38-page ruling in Latif v. Holder, the ACLU's challenge to the No-Fly List, U.S. District Court Judge Anna Brown recognized that the Constitution applies when the government bans Americans from the skies. She also asked for more information about the current process for getting off the list, to inform her decision on whether that procedure violates the Fifth Amendment guarantee of due process.

We represent 13 Americans, including four military veterans, who are blacklisted from flying. At oral argument in June on motions for partial summary judgment, we asked the court to find that the government violated our clients' Fifth Amendment right to due process by barring them from flying over U.S. airspace – and smearing them as suspected terrorists – without giving them any after-the-fact explanation or a hearing at which to clear their names.

The court's opinion recognizes – for the first time – that inclusion on the No-Fly List is a draconian sanction that severely impacts peoples' constitutionally-protected liberties. It rejected the government's argument that No-Fly list placement was merely a restriction on the most "convenient" means of international travel.

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.

According to the court, placement on the No-Fly List is like the revocation of a passport because both actions severely burden the right to international travel and give rise to a constitutional right to procedural due process:

Here it is undisputed that inclusion on the No-Fly List completely bans listed persons from boarding commercial flights to or from the United States or over United States air space. Thus, Plaintiffs have shown their placement on the No-Fly List has in the past and will in the future severely restrict Plaintiffs' ability to travel internationally. Moreover, the realistic implications of being on the No-Fly List are potentially far-reaching. For example, TSC [the Terrorist Screening Center] shares watchlist information with 22 foreign governments and United States Customs and Boarder [sic] Protection makes recommendations to ship captains as to whether a passenger poses a risk to transportation security, which can result in further interference with an individual's ability to travel as evidenced by some Plaintiffs' experiences as they attempted to travel abroad by boat and land and were either turned away or completed their journey only after an extraordinary amount of time, expense, and difficulty. Accordingly, 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.

The court also found that the government's inclusion of our clients on the No-Fly List smeared them as suspected terrorists and altered their ability to lawfully board planes, resulting in injury to another constitutionally-protected right: freedom from reputational harm.

The importance of these rulings is clear. Because inclusion on the No-Fly List harms our clients' liberty interests in travel and reputation, due process requires the government to provide them an explanation and a hearing to correct the mistakes that led to their inclusion. But under the government's "Glomar" policy, it refuses to provide any information confirming or denying that our clients are on the list, let alone an after-the-fact explanation and hearing.

The court has asked the ACLU and the government for more information about the No-Fly List redress procedure to help it decide the ultimate question of whether that system violates the Fifth Amendment right to due process. We are confident the court will recognize that the government's "Glomar" policy of refusing even to confirm or deny our clients' No-Fly List status (much less actually providing the reasons for their inclusion in the list) is fundamentally unfair and unconstitutional.

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Anonymous said...

Finally something is being done about this! My question is...Why did it take over 10 years for the courts to see that our Constitutional rights were being violated? Hmmmm...the wheels of justice sure do turn slow when it comes to the common man. Now how about the TSA, Patriot Act, NDAA, Drones, NSA spying, Drug Laws, Chemtrails, etc., etc., etc.? Flying should be the least of our concerns.

Anonymous said...

After the inevitable 4 years of appeals to this ruling, the 5 years of foot dragging on it's implementation and the declaration of martial law in America, I wouldn't get too excited that something will change.

Those on the no-fly list are there until they croak.

In the meantime, the distraction this case provides is just what the government needs to give US citizens hope that justice will prevail while the government works their black ops in the background.

Anonymous said...

'...hope will appear once those responsible are held law or rope justice...
until then...i will continue to stack/prep and watch for signs...yes this is something to admire, judicial recognition of constitutional trespass BUT until anything substantive occurs to address these traitors...i just keep preparing.

Hide Behind said...

Pull your panties back up, tis way to early to celebrate and read the ruling, judge does not say that list itself is unconstitutional or that government cannot under crrtain conditions ban access to flights.
THIS Is just another way gov gets the Weeping Willows to aid in placing restrictions upon those people and leave tons of variables, "they say they will only', we have to protect the old and children.
so the good people said lets make Insurance( Actually "FINANCIAL RESPONSIBILITY") THE LAW BY VOTING.

THE Gov will still be allowed to limit who travels, just as airlines have banned unruly people from using their tacilitus and it is legal.
THAT SOME WILL NEVER find out WHY does not realy concern todays. Civil libertarians today all they care about ils career and join suits already in progress to claim fame

FOREIGN money big money is only reason this case is moving forward.
ACLU GOT THE TOKEN MOLITARY IN PUBLIC EYE guaranteeing dupport by cons of all muck.

Anonymous said...

finally an honest judge,..there is still hope!

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