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One Strike Against No Fly List; More Scrutiny To Come 213

Posted by Soulskill
from the too-late-i-already-bought-a-horse-and-carriage dept.
New submitter MickyTheIdiot writes "The Jurist reports: 'A judge for the U.S. District Court for the District of Oregon ruled Wednesday (PDF) that those placed on the U.S. government's no-fly list have 'a constitutionally-protected liberty interest in traveling internationally by air, which is affected by being placed on the No Fly List.' The plaintiffs in the case are 13 U.S. citizens who were denied boarding on flights over U.S. airspace after January 2009.' Judge Anna Brown hasn't ruled on the constitutionality of the No Fly List yet, and has instructed the attorneys involved to present a roadmap for deciding the remaining issues. However, she has acknowledged that the No Fly List is a major burden to those on the list and they have the right to get that status reviewed."
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One Strike Against No Fly List; More Scrutiny To Come

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  • by SuperKendall (25149) on Friday August 30, 2013 @04:40PM (#44719961)

    At the very least, someone on the No-Fly list should be allowed to fly if they pay for a second seat and an armed government agent to sit behind them the whole flight.

    It seems like if the increased screening actually worked a no-fly list is rather pointless... I mean that should catch any weapons of power enough to do anything, right? And if you simply don't want them entering the U.S. well that's what customs is for.

    • by i kan reed (749298) on Friday August 30, 2013 @04:42PM (#44719971) Homepage Journal

      Yes, but when you're using statistics to pre-judge people, you aren't confident enough to spend a fortune on addressing the risk they represent, but you're more than comfortable blindly squashing their rights.

    • by wisnoskij (1206448) on Friday August 30, 2013 @04:51PM (#44720047) Homepage

      Except that it has been proven that the increased screening actually hardly prevents anything at all.

      • Re: (Score:3, Insightful)

        by Anonymous Coward

        Except that it has been proven that the increased screening actually hardly prevents anything at all.

        Now why the hell even say this when there is little in the TSA and their fucking ridiculous overreach that would justify their current authority, or even their very existence.

        The burden of proof has never really been a burden for any government budget. Ever.

      • by Anonymous Coward on Friday August 30, 2013 @05:19PM (#44720265)

        IIRC back in '72 an El Al flight was hijacked. Since that time
        no El Al flight has been hijacked. Now what was it they did to pevent
        such thing? Hmmmm - OK I remember - armed guards. If you
        steal an EL Al flight - they shoot you!

        Next what did/does this cure cost in time and money?
        Next problem please.

        • Re: (Score:3, Insightful)

          Israeli also employs racial profiling. This is something the US can't/won't do (officially). Being PC is costing the US quite a bit, both in terms of effectiveness and monetarily.
          • by DaHat (247651) on Friday August 30, 2013 @06:01PM (#44720529) Homepage

            It's always odd to me how some are incapable of using the term 'profiling' without the misplaced prefix of 'racial'.

            They engage in profiling. Period.

            Profiling comes in many different kinds, shame you are ignoring them.

            Example: If you pay cash for a one way ticket an hour before the flight leaves and you are carrying only a carry on bag... regardless of race or nationality, you are going to get a more in-depth look than someone who books 6 weeks in advance with a credit card along with their family and multiple bags.

            • I wasn't ignoring them, but pointing out how they would be protested in the US.
            • Re: (Score:2, Interesting)

              by Anonymous Coward

              Example: If you pay cash for a one way ticket an hour before the flight leaves and you are carrying only a carry on bag... regardless of race or nationality, you are going to get a more in-depth look than someone who books 6 weeks in advance with a credit card along with their family and multiple bags.

              Yup. Colin Powell likes to tell the story of his first plane trip post-Government was a speaking gig arranged at a moments notice so he bought a last-hour, one-way ticket ... and got pulled aside for Special Screening (not the celebrity kind). I don't know if its sadder that if it had happened to Oprah she'd have claimed it was racial discrimination or that I'm not sure it wasn't that in Colin's case.

              True facepalm moment is that the TSA guy doing the extra screening on him actually recognized him and kept

              • by Firethorn (177587)

                True facepalm moment is that the TSA guy doing the extra screening on him actually recognized him and kept doing it anyway because a faceless person on a computer had marked Colin's ticket as needing extra checks.

                I'm not TSA but I make the 'famous' and/or high ranking people fill out the same required paperwork before I issue them stuff as everybody else.

                Personally, I think the high-rankers need to experience the joys of TSA checks some more. Then we might see reform.

                And if you think Israel's profiling is anything but 100% racist then you have a looser definition of "race" than the Likud.

                Really? The fact that I think they target by religion and sex as well makes me have a loose definition of "race"?

              • by lgw (121541)

                And if you think Israel's profiling is anything but 100% racist

                So they screen 100% of apparent non-Jews, and 0% of apparent Jews? That's one heck of a claim, and doesn't match what I've heard from, well, everyone I know who's been there. Any evidence for that?

              • by Zemran (3101)

                "kept doing it anyway"

                When I was in the military they were always more thorough with the top brass because that was who would write a report on how thorough they were. If they waved their friendly driver through he would not be writing a report on that.

            • by mcl630 (1839996)

              There already do this. If you buy your ticket 2 days or less before the flight and are not in the airline's frequent flyer club, you are subject to extra screening. And I'm pretty sure you cannot buy a ticket at the airport with cash anymore (at least not without also showing a valid CC and 50 forms of ID).

            • by Zemran (3101)

              I am often returning the same day (one hour flights), I often travel without luggage and this is common enough (i.e. lots of business travellers return the same day) that it does not get any extra interest from security. I do not think that the security guy even knows if I have a return or one way ticket, I am just the next guy in the queue. I do not think they even know whether I have any checked in luggage. They just fondle me and give me the same shit as the next guy who may have booked 6 weeks in adv

          • We could save a lot of money and efficiency if we just dispensed with human rights. Think of the labour savings in the days of slavery! /nostalgia

            Also I find it amusing that you consider the US PC.

          • by multiplexo (27356)
            Bullshit, you're just another stupid racist who wishes that the government would crack down on all of those horrible negros and other people of color. White people, especially white male conservatives are the last people in the world who would want to implement any sort of "honest" profiling scheme because the history of terrorism in America is overwhelmingly white, male and conservative. Don't believe me? Well how about a little terrorist organization called the KKK, which lynched thousands of black men in
      • by alexo (9335)

        It prevents freedom.

    • This is most likely not about airline safety, as you pretty well identified. There is exactly zero increase in security if a person is not allowed to travel by plane.

      So what is the reason? That's the thing I don't get. You don't increase safety (the alleged benefit). You don't line anyone's pockets (the usual benefit). Why do it?

      • by tukang (1209392)

        It does line someone's pockets. Maintaining and enforcing a no-fly list costs money. Follow the money.

    • or what about useing the Israeli airport security system?

    • by whoever57 (658626) on Friday August 30, 2013 @06:20PM (#44720657) Journal
      I would like to know how I can drive to Hawaii? Or how I can drive to Alaska without the permission of a foreign government.
      • by SuperKendall (25149) on Friday August 30, 2013 @06:26PM (#44720687)

        You can board the ferry at Bellingham, washington and get off at Alaska without ever going through Canadian customs.

        You can't drive to Hawaii that I know of but you can take a cruise there from the mainland.

        Not sure what your real point was though.

        • by whoever57 (658626)

          You can board the ferry at Bellingham, washington and get off at Alaska without ever going through Canadian customs.

          Until the administration decides that the no fly list applies to cruises also. My point is that the administration's claim that driving is an alternative method of transportation which people on the no-fly list can use is not even valid for interstate travel, let alone international travel.

      • by nbauman (624611) on Friday August 30, 2013 @07:14PM (#44720959) Homepage Journal

        These problems were discussed in detail in the Opinion and Order.

        https://www.aclu.org/sites/default/files/assets/latif_v_holder_opinion_and_order.pdf [aclu.org]

        Many of these Plaintiffs cannot travel overseas by any way other than air because such journeys by boat or by land would be cost-prohibitive, would be time-consuming to a degree that Plaintiffs could not take the necessary time off from work, or would put Plaintiffs at risk of interrogation and detention by foreign authorities. In addition, some Plaintiffs are not physically well enough to endure such infeasible modes of travel.

        Amayan Latif: Latif is a United States Marine Corps veteran and lives in Stone Mountain, Georgia, with his wife and children. Between November 2008 and April 2010 Latif and his family were living in Egypt. In April 2010 Latif and his family attempted to return to the United States. Latif was not allowed to board the first leg of their flight from Cairo to Madrid. One month later Latif was questioned by FBI agents and told he was on the No Fly List. Because he was unable to board a flight to the United States, Latif’s United States veteran disability benefits were reduced from $899.00 per month to zero because he could not attend the scheduled evaluations required to continue his benefits. In August 2010 Latif returned home after the United States government granted him a “one-time waiver” to fly to the United States. Because he cannot fly, Latif is unable to travel from the United States to Egypt to resume studies or to Saudi Arabia to perform a hajj, a religious pilgrimage and Islamic obligation.

    • by Anonymous Coward

      I can't agree more. It's interesting (almost questionable) that our government allows itself to get so caught up in $theLastTerroristAct and preventing it, when they should know good and well that the next terrorist attack will be different than the last. There isn't any way to lock down any society in a way that will not allow a terrorist to enter, but still provide a reasonable lifestyle for those that do live there. The result as of now is that if you want to fly, you might be a terrorist. If you nee

  • by i kan reed (749298) on Friday August 30, 2013 @04:40PM (#44719963) Homepage Journal

    There are a lot of people coming in here, saying "about time" or something similar. What this attitude fails to incorporate is that the judicial system isn't concerned with unjust policies until they actually create injustice. And even then, an actual judge has to be less terrible than those that created the policies in the first place.

    It takes a long time, and is a natural component of how checks and balances work in the US. It's not perfect, and sometimes the bad comes from congress faster than it can be addressed, but this is how things are supposed to work.

    • by dgatwood (11270)

      No, this is not really how things are supposed to work. Congress is supposed to be relatively slow to action so that the judiciary has time to check and balance. Congress was never intended to be a nearly full-time job....

    • by Hatta (162192)

      What this attitude fails to incorporate is that the judicial system isn't concerned with unjust policies until they actually create injustice.

      The first person denied his right to travel without due process has suffered an injustice.

      It's not perfect, and sometimes the bad comes from congress faster than it can be addressed, but this is how things are supposed to work.

      This isn't how it works. This is how it fails to work. There is absolutely no benefit whatsoever in allowing this sort of injustice to contin

      • by tibman (623933)

        You are forgetting that how a law is written is not how a law is enforced. They are different branches.

  • by cold fjord (826450) on Friday August 30, 2013 @04:43PM (#44719983)

    From the article:

    Judge Anna Brown has not concluded whether the government's use of the no-fly list violated the plaintiffss constitutional rights to due process, stating in her opinion that, "the court is not yet able to resolve on the current record whether the judicial-review process is a sufficient, post-deprivation process under the United States Constitution." Brown has given both parties till September 9 to file a joint status report setting out their recommendation as to the most effective process to ensure that the court may come to a conclusion on the remaining issues

    So there are still some big issues to resolve, before the practically inevitable appeals begin.

    There will be some tough issues to work through since no doubt some of the evidence in individual cases is classified. Still, there should be some sort of process to have information in one's favor considered. Both sides have a point.

  • by retchdog (1319261) on Friday August 30, 2013 @04:46PM (#44720001) Journal

    Tell us, misleadingly [wikipedia.org], how the Constitution doesn't specifically mention the right to travel, and then sleazily recast this into the context of coercion of private corporations. You've done it a hundred times before, so get to it.

    • by SirGarlon (845873) on Friday August 30, 2013 @04:59PM (#44720109)
      The argument that the Constitution doesn't specifically mention the right to travel is bullshit, according to the Ninth Amendment [wikipedia.org]. Anyone who holds a diploma from a US high school should know that. A Federal judge who actually supports that bullshit argument is, in my opinion, incompetent. Parent's "jackbooted apologist" label would also fit such a judge.
      • by Kjella (173770)

        But the 9th amendment also doesn't support the opposite conclusion.

        The Government of the Union, though limited in its powers, is supreme within its sphere of action, and its laws, when made in pursuance of the Constitution, form the supreme law of the land. There is nothing in the Constitution of the United States similar to the Articles of Confederation, which exclude incidental or implied powers. If the end be legitimate, and within the scope of the Constitution, all the means which are appropriate, which are plainly adapted to that end, and which are not prohibited, may constitutionally be employed to carry it into effect.
        -- McCulloch v. Maryland - 17 U.S. 316 (1819)

        In short, Congress has the power to enact laws not specifically listed in the constitution. The 9th amendment says the people retain rights not specifically listed in the bill of rights. The process when non-enumerated laws clash with non-enumerated rights isn't exactly clear, sometimes the Supreme Court has "found" a right and a few times Congress has amended the constitution to specifically enumerate a few more like the 13th amendment. In

        • by sconeu (64226)

          Except for the Tenth Amendment [usconstitution.net], which explicitly prohibits Congress from enacting laws that are not constitutionally within its purview .

    • by Frobnicator (565869) on Friday August 30, 2013 @05:08PM (#44720195) Journal

      You seem to forget that the Constitution grants powers from the people to the government, not the other way around. Too frequently people wrongly assume that the only rights people have are those expressly reserved for the people by the Constitution.

      If a power is not mentioned in the Constitution the government does not have that power. It remains with the people.

      • by Fwipp (1473271)

        Pretty sure you agree with GP.

      • by wytcld (179112) on Friday August 30, 2013 @05:29PM (#44720323) Homepage

        The power to fly, at the time of the Constitution, belonged only to a small minority of the people: witches. If the founders had been asked whether they wished to extend the power to fly to everyone, what should their answer have been? "Sure, let's all be witches"?

        Or would they have affirmed the right of witches to be left alone in the sky without interference? Would they have seen that as the prohibited establishment of a state-supported religion?

        Note to the "agencies": I accept piecework mocking the sincere concerns of my fellow citizens for their freedoms, thereby helping diminish their resistance to your superb safe-keeping of our insecurities.

        • by dkleinsc (563838)

          Or would they have affirmed the right of witches to be left alone in the sky without interference? Would they have seen that as the prohibited establishment of a state-supported religion?

          The witches would have been seen as the free exercise of religion, unless they were receiving a government contract or endorsement of their flying-around-advancing-behavior.

      • by Sloppy (14984)

        You seem to forget that the Constitution grants powers from the people to the government, not the other way around.

        Even a pretty anarchic libertarian is going to think that the Interstate Commerce clause, has some kind of non-abused non-perverted legitimate meaning, where The People really did intend to grant some sort of power over something. No?

        How broadly those words were meant, is something worth fighting about, sure. But if someone buys a ticket to use a commercial airplane, where the airplane crosse

        • by rahvin112 (446269)

          Of course the Fed's have the right to regulate interstate commerce and the airlines in particular. But I don't believe they have a right to regulate the customers of the airlines without a damn good reason and a process to challenge those listings. The airline passenger isn't engaging in interstate commerce, the airline is.

        • by drinkypoo (153816)

          How broadly those words were meant, is something worth fighting about, sure. But if someone buys a ticket to use a commercial airplane, where the airplane crosses state lines it's not totally crazy that the federal government has the power to regulate that commerce. Maybe it's wrong (probably not, though), but it's not on-the-face-of-it totally stupid, is it?

          Yes, yes it is. It's stupid because I'm not engaging in interstate commerce when I buy a ticket. I buy a ticket so that I can get on a plane. I don't have to pay again when I get off the plane. There may be taxes accrued when I get off a plane; I would argue that any such taxes are unconstitutional, as they are basically taxes on commerce with another state. Further, they represent a restriction of travel, which is not constitutionally granted. We're talking about moving people and their personal effects, n

    • Where in the constitution does it say anything about the right to travel? And even if it did, surely just because you have the right doesn't mean that you have the right to force a private company to transport you when you're on the no-fly list?

      (OK, are you happy? Are you happy now? *sigh* The sad thing is I suspect you're right and someone out there is itching to write the above non-sarcastically, and to add insult to injury they consider themselves libertarians...)

  • by Anonymous Coward on Friday August 30, 2013 @04:53PM (#44720057)

    If the government decides that someone is a threat such that they shouldn't be allowed to fly, then they should be arrested and tried for whatever crimes they're accused of.

    If they haven't committed a crime and are simply guilty by association, then they are being punished without a trial. Not being able to fly is a very strong punishment.

    • by SirGarlon (845873)
      From a government that now assassinates citizens without trial, not being allowed to fly is a pretty mild punishment.
  • by Anonymous Coward on Friday August 30, 2013 @04:57PM (#44720087)

    Does the no-fly list make it illegal for the person on the list to fly, or illegal for a common carrier to carry them, or some other thing like they can't enter the controlled space at the airport? I could do the research but maybe someone who knows can explain it much better than the legalese in the law, and I'm not even sure if the relevant laws aren't in that crazy "secret law" category that seems to show up when the TSA is mentioned.

    One part that is concerning to me, beyond the constitutional issues, is that even if one accepts that it is necessary for safety to have a list of people who should be subjected to additional scrutiny prior to flight, that suspect person can't be cleared as "safe to fly" with essentially unlimited invasive screening by the TSA. Which means either (a) the security measures are easily bypassed even when a person is targeted for extreme scrutiny or (b) the no fly list actually serves a policing or political function, that is, to locate / harass / intimidate / prevent the free travel of / etc. of people who manage to make it on the list. I'm guessing it is the latter, which is depressing, but not surprising. Abuse of power seems to be an unavoidable part of giving people power.

    • Re: (Score:3, Insightful)

      by Anonymous Coward

      Which means either (a) the security measures are easily bypassed even when a person is targeted for extreme scrutiny or (b) the no fly list actually serves a policing or political function, that is, to locate / harass / intimidate / prevent the free travel of / etc. of people who manage to make it on the list. I'm guessing it is the latter, which is depressing, but not surprising. Abuse of power seems to be an unavoidable part of giving people power.

      Actually it's both. The screening methods don't work very well and only have the apparent effectiveness they do because no one (competent) is actually trying to destroy/hijack commercial airplanes.

      The whole system is basicly Lisa' tiger-repelling rock.

  • At worst, being on the list should mean you're subject to a full search of your luggage and person to make sure you're not carrying explosives or weapons. Not that you can't fly at all.

    • At worst, being on the list should mean you're subject to a full search of your luggage and person to make sure you're not carrying explosives or weapons. Not that you can't fly at all.

      Maybe, but then if something does go wrong who gets the legal liability? The Airline. So, even if the government cleared someone to fly, the Airline cannot be forced to board you. What Airline is willing to take that risk? In fact, there have been a number of people that Airlines have deemed "suspicious" that they have removed from flights even after they cleared security. Pretty much all of them have been later cleared and flown on other flights with no problems.

  • Can't the airlines reject anybody on the no-fly list since the airlines are a private corporation? They're not violating any discrimination laws. How is this any different from a restaurant that "Reserves the right to refuse service"?

    If Delta won't fly people on the do not fly list, go find an airline that will fly them.

    • by Microlith (54737)

      The airlines reject people on the list because no corporation is going to fight the government over something like the no-fly list. It doesn't impact their bottom line in any significant way and I wouldn't be surprised if they weren't forced to check and reject people for being on it by law.

      You'll be extremely hard pressed to find a single airline that would let you fly if you were on the no-fly list. The simple reality is that the list has no business existing.

    • by profplump (309017)

      No airline is allowed to fly people on the list. It's not a choice by the corporation, it's a rule from the government.

  • At least we can still detain people indefinitely without charging them or a trial, and assassinate american citizens and foreigners using radio controlled missiles, amirite?

    • by dkleinsc (563838)

      We can also still torture them, and spy on them without having to deal with that pesky "probable cause" business.

  • No? So, take a boat.

  • I was wondering how many of them were named Mohammed.

    http://www.phdcomics.com/comics/archive.php?comicid=1244 [phdcomics.com]

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