Federal Judge Rules US No-fly List Violates Constitution 276
New submitter dmitrygr sends this news from Reuters: The U.S. government's no-fly list banning people accused of links to terrorism from commercial flights violates their constitutional rights because it gives them no meaningful way to contest that decision, a federal judge ruled on Tuesday. ... "The court concludes international travel is not a mere convenience or luxury in this modern world. Indeed, for many international travel is a necessary aspect of liberties sacred to members of a free society," [U.S. District Judge Anna Brown] wrote in her 65-page ruling (PDF). "Accordingly, on this record the court concludes plaintiff's inclusion on the no-fly list constitutes a significant deprivation of their liberty interests in international travel," Brown said.
Re:Sudden outbreak of common sense (Score:5, Interesting)
Because the Bill of Rights, as written, is not a list of rights granted but, rather, a list of prohibitions on the new government.
There was a huge debate about listing any rights because it was thought that no list could be complete. The preamble to the Bill of Rights identifies why it exists:
THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.
Notice the important statement, "...further declaratory and restrictive clauses should be added..."
"Congress shall make no law..."
"...the right of the people to keep and bear Arms, shall not be infringed."
"No soldier shall..."
"...shall not be violated..."
These are all prohibitions on the newly formed government. A compromise was reached that required the inclusion of the 9th amendment, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." This compromise is why all "retained" rights aren't listed and what allowed any rights to be listed; many who were negotiating the Bill of Rights were rightly fearful that the list would be seen as a "full" list of rights of the people.
The U.S. Constitution, as designed, granted powers from the people to the government. The compromise found within the Bill of Rights essentially listed a number of prohibitions so the new government absolutely knew that they could in no way interfere with this core set of rights.
Unfortunately, we've reached a point where many people believe that the U.S. Constitution confers rights from the government to the citizens rather than it's original purpose of conferring powers to the government from the people.
Re:About time (Score:5, Interesting)
It's okay having a no fly list but not having a way to appeal being on it is an abomination.
So close, but so so far away. Let me help you: "No person shall ... be deprived of life, liberty, or property, without due process of law"
The definition of due process is beyond the scope of a /. post, but at a minimum it would require the right to be confronted with the evidence against you and a review by a judge and/or jury of your peers. Some bureaucrat in the national security apparatus adding your name to a list does not rise to the level of due process under any definition.
Oh, and guess what? The list is totally pointless anyway. Suspected terrorists from other countries could already be denied entry into the United States by the simple exercise of refusing to grant them a visa. Last time I checked you can't board an aircraft to the United States without valid travel documents and the appropriate visas.
Prediction: New addition to the No Fly List (Score:5, Interesting)
Judge Anna Brown
Think I'm kidding? How about that oh-so-convenient-but-WTF case where a witness to a case concerning the *legality of the No Fly List* was put on the No Fly list while the DOJ lied about the facts about the blocking, delaying her testimony [1].
The corruption in Washington has been festering for at least a dozen years. Forget Skynet - this is the dystopian menace that is going to ruin our world.
[1] https://www.techdirt.com/artic... [techdirt.com]
Re:Here's the Solution (Score:4, Interesting)
Re:Awesome! (Score:4, Interesting)
The difference it will make, though, isn't that they'll get to fly. At best, they'll get to contest their presence on the list. And at that point, the government will pull out the same argument that it uses for those it has labelled sexual offenders, and which (barely) has already passed SCOTUS scrutiny: Presence on a list "is not punishment", and is within the "interests" of the government. It may lead to a situation where any law that says you can't fly comes down. However, if the airlines choose (and they will suddenly so choose) to not let those on the list fly, that's not the government's problem or responsibility. You know, same as it isn't if presence on a list causes someone to have to move because they're too close to a park or a school, or to die subject to vigilante violence. Your problem. Not theirs. So no flying. But hey, they'll get to spend a bunch in court to find that out. It's good for the economy when the lawyers buy new toys, you know.
Re:Sudden outbreak of common sense (Score:3, Interesting)
The rationale for the no-fly list not violating those rights is "well they can still walk and swim"; we're just saying they can't fly.
Similar arguments were used to justify the TSA and free speech zones, if I remember right. Why not just suspend people's rights in the entire country? They can go elsewhere if they don't like it! This logic makes sense to authoritarians...
Re:Awesome! (Score:3, Interesting)
The last time this came up in a big way, no one here could point to anything suggesting that flight is a necessary part of modern life, to the point that it is a constitutional right.
In fact, most people pointed to cases where travel was NOT a constitutional right.
So what will change is everyone here will now have a case to point to suggesting that the no-fly list is actually unconstitutional. Actually unconstitutional as opposed to obviously unconstitutional.
So the difference on slashdot is that people will have a case to point to, but still won't.
Re:Awesome! (Score:4, Interesting)
Thumbing one's nose at federal judges does not end well. It's one thing if it's a politically contentious issue that the judges themselves are divided on, but this is not such a case. If the community of federal judges feels slighted in their authority by some part of the administration, they can get very creative in making their displeasure known.
More likely this will just go through the normal appeals process, and nothing will change until the SCOTUS eventually gets to the case.
Re:Awesome! (Score:5, Interesting)
The judge in this case, though, will be added to the no-fly list really soon.
Not likely. A federal judge walking around in public has extra powers, by virtue of being a peace officer; not only does a federal judge have the power to quickly write up an order requiring that they be allowed to board the plane, and the ability to issue immediate punitive legal actions for non-compliance, but these judges also have the power to make warrantless arrests under various conditions and are legally allowed to carry sidearms and other law enforcement tools with them, even onboard.
In short: the TSA is not likely to even joke about messing with federal judges.
Who do you think they are, the IRS? :)
Re:Sudden outbreak of common sense (Score:4, Interesting)
This. I mean, it was an admirable, if failed, attempt.
In the end our greatest protection was that the constitution was written by men who knew that what they were creating could be used against them, and so they attempted to put limits on it. Those limits were great but, as time went on, many were circumvented over some "crisis" or another; with each excuse piling upon the one before it.
And lets not even talk about the laughable scalability of the system. 300 million people have their interests represented at the highest levels by under 1000? Why to keep representation levels close to what they were in the begining, you would need nearly 90,000 representatives.
Never mind the idea that two big tent parties can, in any meaningful way, represent the spectrum of even reasonable views.... but the system is designed to settle into a stable two party system; and is most easily gamed by two parties that divide up the issues between them.
Re:Awesome! (Score:3, Interesting)
When the judge issues an arrest warrant for someone preventing someone boarding an airplane due to being on a no fly list, I'll believe it will make a difference.
Actually it will be respected when a judge requires the government to either explain why a person is on the list or take his name off. The government has been claiming that the reasons must be kept secret for reasons of national security and that this does not violate the "due process of law" requirement of the constitution because the persons on the list are not being deprived of "life or liberty".
The judge has just ruled at these persons are being "deprived of liberty" and that the appeal process does not constitute "due process of law". Thus, it is unconstitional. The judge has said in effect: "I understand your concerns about national security, but what you are doing is illegal. I don't care how you fix it, just fix it."
The appeals process does not constitue due process of law because the party on the list is not informed of the accusations which he is to refute. The government expects him to guess what information might alay their fears. For a truly innocent person about whom completely nonsensical accusations have been lodged, this is impossible. No one has ever been able to get off this way. Only one person has gotten his name removed from the list and that was by getting an FBI agent to admit that he had checked the wrong box on the form nominating the person for the list. Even then it took a sternly worded court order.