One Strike Against No Fly List; More Scrutiny To Come 213
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."
Re:Come on, you jackbooted apologists... (Score:5, Informative)
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.
Re:A constitutional right to fly? (Score:4, Informative)
The opinion and order explains that in detail.
https://www.aclu.org/sites/default/files/assets/latif_v_holder_opinion_and_order.pdf [aclu.org]
1. Right to Travel
Plaintiffs contend the government has deprived them of their protected liberty interest in travel. In Kent v. Dulles, 357 U.S. 116 (1958), the Supreme Court held “[t]he right to travel is part of the ‘liberty’ of which the citizen cannot be deprived without due process of law under the Fifth Amendment.” Id. at 125.
As noted by the Ninth Circuit, “the [Supreme] Court has consistently treated the right to international travel as a liberty interest that is protected by the Due Process Clause of the Fifth Amendment.” DeNieva v. Reyes, 966 F.2d 480, 485 (9th Cir. 1992)(emphasis added)(citing Aptheker v. Sec’y of State, 378 U.S. 500, 505-08 (1964), and Califano v. Aznavorian, 439 U.S. 170, 176 (1978)). In DeNieva the plaintiff brought a claim under 42 U.S.C. 1983 after her passport was seized by government officials. The Ninth Circuit held the plaintiff had a right under the Fifth Amendment to travel internationally, and that right could not be deprived without a post-deprivation hearing. 966 F.2d. at 485.
Although Defendants do not dispute the United States Constitution affords procedural due-process protection to an individual’s liberty interest in travel, Defendants rely heavily on Gilmore v. Gonzales, 435 F.3d 1125 (9th Cir. 2006), and Green v. Transp. Sec. Admin., 351 F. Supp. 2d 1119 (W.D. Wash. 2005), to support their position that there is not a constitutional right to travel by airplane or to access the most convenient form of travel. In Gilmore the plaintiff challenged the government’s airline passenger identification policy as unconstitutional, alleging the policy violated his right to travel because he could not travel by commercial airline without presenting identification. The Ninth Circuit rejected plaintiff’s argument because “the Constitution does not guarantee the right to travel by any particular form of transportation.” 435 F.3d at 1136. The court also found the “burden” imposed by the challenged identification policy was not unreasonable. Id. at 1137. The plaintiffs in Green alleged they were innocent passengers without links to terrorist activity, but they had names similar or identical to names on the No Fly List and had been mistakenly identified by airport personnel as the individuals whose names appeared on that list. As a result, the plaintiffs were subjected to enhanced security screening. None of the plaintiffs ever missed a flight or were subjected to heightened screening for more than an hour. 351 F. Supp. 2d at 1122. The court denied the plaintiffs’ procedural due-process claim and held the plaintiffs did not have a right to travel throughout the United States “without any impediments whatsoever.” Id. at 1130.
The Court finds Green and Gilmore are distinguishable from this case for a number of reasons. These cases involve burdens on the right to interstate travel as opposed to international travel. 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. In Ibrahim v. Department of Homeland Security the Northern District of California recently rejected an argument similar to the one made by Defendants here:
While the Constitution does not ordinarily guarantee the right to travel by any particular form of transportation
Re:Anyone should be able to fly (Score:4, Informative)
The US does, you just don't know s/he is there. They call them "Federal Air Marshals". They've been around for a long time too (since 1969). Though i should also say that there isn't a guarantee you have one. You can't know for sure.
Re:Anyone should be able to fly (Score:5, Informative)
Yes, people charged with a crime often have their movements restricted as a condition of bail, a fact which has nothing to do with the TSA's idiotic no-fly list. See people who are charged with a crime and who have had their movements restricted have had the benefits of a little thing called due process of law [wikipedia.org] and the fifth amendment to the Constitution [wikipedia.org]. See, if you've been charged with a crime and have had your movements restricted that means that you've been arrested, charged in a court of law, allowed to have counsel to represent you. You can also appeal the judgment that restricts your movements, confront the witnesses against you and you have the right to subpoena witnesses to testify in your favor. You have none of this with the TSA. The TSA restricts your liberty to travel without telling you why they've done so or what evidence they used to make this determination and gives you no opportunity to defend yourself. The TSA no-fly list is essentially nothing more than the imposition of Soviet style internal passports that has nothing to do with protecting citizens and everything to do with restricting their movements.