Federal Judge Says Terrorist Watchlist Is Unconstitutional (arstechnica.com) 165
An anonymous reader quotes a report from Ars Technica: A federal judge in Virginia has ruled that the government's terrorism screening database (TSDB) is unconstitutional because people on the list are not given an adequate opportunity to contest their inclusion. The ruling is a victory for a group of almost 20 Muslim Americans who sued the government over the list in 2016. "There is no independent review of a person's placement on the TSDB by a neutral decisionmaker," Judge Anthony Trenga wrote on Wednesday. "Individuals are not told whether or not they were or remain on the TSDB watchlist and are also not told the factual basis for their inclusion." As a result, the judge concluded, the watchlist system is unconstitutional.
The government maintains several different lists for suspected terrorists. These include the no-fly list, which, as its name implies, prohibits certain people from flying in the US. The TSDB is a larger list believed to hold more than a million names. People on the list aren't prohibited from flying, but they can face unpleasant consequences when they travel, especially internationally. The current system "provides no notice concerning whether a person has been included or remains in the TSDB, what criteria was applied in making that determination, or the evidence used to determine a person's TSDB status." The judge concludes that the current system "does not provide to a United States citizen a constitutionally adequate remedy under the Due Process Clause."
Judge Trenga ordered both sides in the lawsuit to propose changes that could address the system's constitutional defects.
The government maintains several different lists for suspected terrorists. These include the no-fly list, which, as its name implies, prohibits certain people from flying in the US. The TSDB is a larger list believed to hold more than a million names. People on the list aren't prohibited from flying, but they can face unpleasant consequences when they travel, especially internationally. The current system "provides no notice concerning whether a person has been included or remains in the TSDB, what criteria was applied in making that determination, or the evidence used to determine a person's TSDB status." The judge concludes that the current system "does not provide to a United States citizen a constitutionally adequate remedy under the Due Process Clause."
Judge Trenga ordered both sides in the lawsuit to propose changes that could address the system's constitutional defects.
Red flag (Score:3, Insightful)
And by the exact same logic red flag laws are unconstitutional.
Maybe now we can stop discriminating against law abiding gun owners and go after the ones that actually commit shootings.
Re: Red flag (Score:5, Insightful)
Remember when Democrats wanted to use this list to vet gun purchases?
Re: Red flag (Score:5, Informative)
"Since July 2005, the FBI has run licensed gun transactions against the terror watch list."
https://fivethirtyeight.com/fe... [fivethirtyeight.com]
NB: 2005 was the Bush administration.
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You think people in a political party all walk, talk, and think in lockstep?
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There are plenty of people on both sides of the isle that expect EXACTLY that. And there are almost as many politicians that do exactly that.
Nuance and independence in American politics is almost entirely gone.
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No True Democrat fallacy
Comment removed (Score:5, Insightful)
Re:Red flag (Score:5, Insightful)
Red flag laws are more analogous to laws saying felons can't vote, or that sex offenders can't live near a school.
You mean, also blatantly unconstitutional?
Might as well brand people convicted of certain crimes. Is scarlet taken?
Re:Red flag (Score:5, Informative)
It's a judicial order of seizure. Most people like to try and say these issues violate the second amendment, but it is really a 4th amendment issue. Litterally what is happening is a judicial warrant issued on the grounds of probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
So, while you might disagree with the laws, which is your right, calling them unconstitutional is only valid by pulling out the second amendment and leaving the rest of the constitution on the cutting room floor.
Now please excuse me while I bathe in all the negative mod points I am about to incur.
Re:Red flag (Score:5, Insightful)
Red flag laws are nothing like felons/sex offenders losing those things.
Those cases, people are convicted of crimes, the whole point of Red is to skip that whole "messy" process.
Cops show up at your door take your guns, likely get a good inside scoop of whats in your house without a search warrant, and you have to fight an ugly legal battle to get your property back that was taken without due justice.
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I thought Bills of attainder was unconstitutional down there, which is what these laws are.
Here it takes a Judge, usually at sentencing, to put someone on the sex offenders list or remove the privilege of owning a firearm. This means that only actual sex offenders get put on the list and only people who have done something stupid with a gun can't own one rather then kids sexting or some guy peeing or some drug user getting unfairly punished. Voting is a right for all citizens as well.
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It's not a Bill of Attainder. A Bill of Attainder must find a person guilty of a crime without trial and inflict a penalty. Our red flag laws require the firearms returned if no conviction has been made within a certain time--a judge can extend the time limit, but never to more than six months after the original seizure. The materials must all be returned in the same condition as taken, no damage, or else the State faces strict civil liability for illegally depriving a person of property.
This is the s
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Yes, the red flag laws take a Judge to order the removal of firearms. I was talking about laws that stop people from owning a firearm or put people on the sex offender list, sometimes retroactively.
From Wiki's article on Bill of Attainder,
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The prohibition of ownership of a firearm is the result of a conviction by due process, or a voluntary civil settlement (someone opts out of the court case and just accepts the default judgement as such).
Due process doesn't mean prison. I've argued to end minimum time served, to push for inmate diversion, and to only place in prison those representing a credible public safety risk, and to release them when review can no longer show a credible public safety risk. We separate them because they are danger
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The prohibition of ownership of a firearm is the result of a conviction by due process, or a voluntary civil settlement (someone opts out of the court case and just accepts the default judgement as such).
OK, my mistake, I thought there was a law saying something like "convicted felons can not own firearms", or such. If it's just part of the sentencing and only happens for just cause such as doing something stupid with a firearm, that maintains the separation of powers.
I take it that it is the same with voting, only those convicted of a voting related offence get their voting privileges removed at sentencing by a Judge rather then a law of attainder removing a whole groups voting privilege.
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It's not a Bill of Attainder. A Bill of Attainder must find a person guilty of a crime without trial and inflict a penalty.
Hm. Sounds a lot like plea bargaining. In principle, of course, a plea bargain is voluntary on the part of the accused. In principle.
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Plea bargains are supposed to be an optimization, since prosecution would tie up the justice system to no end. 98% of trials are on plea bargain. Imagine what would happen if they all went to a full trial.
If we had a proper justice system based on rehabilitation and redress, this wouldn't be a problem. Review of the crime and the individual would determine most aren't a public safety risk and the necessary action would be minimal. Perhaps a fine, perhaps parole (no fees). Hell, we could leave most o
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So, I'm in the state that created the first Red Flag law, used as a template in all other states. The second-amendment advocacy groups designed it.
Under our benchmark law, a close relative, cohabitant, doctor, psychiatrist, nurse, or other close-relationship person has to make the call. There is a strict penalty for calling in bad faith (like swatting). The retention may be extended by a judge's order, but not beyond six months in total from the day the materials are seized. All seized property must b
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We revoke or suspend a person's license to drive if they have a medical condition that prevents them from operating a motor vehicle safely.
We revoke or suspend a person's license to operate a tool for putting holes in things at a distance if they have a mental health condition or established pattern of behavior that indicates they can't operate it responsibly and safely.
Seems reasonable to me, and I'm against most "gun control" laws (e.g. ineffective and unconstitutional "assault weapons" bans) despite bein
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People aren't being disarmed en-masse by these laws. It's preventing domestic abusers and stalkers from murdering their victims, preventing suicidal and clinically depressed people from harming themselves, and protecting society at large from individuals exhibiting some form of psycho-pathology.
I'm a big fan of evidence, so I'd kind of like to see evidence that these laws are actually effective in doing what you say they do. I'm not sure what form that evidence would take.
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or that sex offenders can't live near a school.
This has always been an asinine rule. Are we really to believe that the only thing keeping sex offenders from preying on kids at school is DISTANCE? Are we chopping off the legs of sex offenders as we release them from prisons so that they can't walk to find kids?
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Other examples, teenage girls take naked pictures of themselves, send them to older boys. Boys get caught and charged with child pornography - sex offenders list. Girls get no charges even though legally they created the child pornography.
I remember at least one case in which an underage girl took a nude-ish picture of herself and sent it to her boyfriend, who shared it widely without her permission. She was indeed charged with producing child pornography, which seems to me to be a severe miscarriage of justice.
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No conviction is needed to seize property using red flag laws or bar a person from exercising their 2nd amendment rights.
Re:Red flag (Score:5, Insightful)
There are significant differences that really do make all the difference. Starting with the Red Flagged individual necessarily being informed that they're being red flagged. Next, the flagged person gets a hearing in court before the order is issued, satisfying due process. The orders are temporary with another hearing necessary before extending them. Generally, there are spelled out criteria for red flagging.
In contrast, you go on the terrorist watchlist because some bureaucrat says you do. No legal criteria, no notice to you, no hearing, and if you ask if you're on it, they'll deny it. You're on it untill some bureaucrat says you're not.
Re:Red flag (Score:5, Insightful)
And the worst part is, the only way you can find out if your on the list is to attempt to travel. It's only AFTER you've bought that non-refundable ticket that they'll tell you if you can actually use it.
If that's not a blatant violation of due process I don't know what is. There are absolute horror stories about people being caught up in this and because there is no due process you can't actually challenge being included on any of the lists. And there ARE mistakes on the list, people included accidentally because an agent checked the wrong box.
I'll never forget the story of the American Woman (naturalized) of Indonesian descent that flew to see her mother in Indonesia and then the US wouldn't let her fly back to the USA where shes a citizen because she was on the no fly list, which ironically didn't prevent her from leaving the US. How'd she find out? She bought a $6000 plane ticket to fly home and was turned away at the gate from boarding.
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You mean like the unalienable right of liberty? The Constitution doesn't allow the Federal government to prohibit immigrants from entering, living, and working here.
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First off there is not so much a unalienable right to liberty, as you put it. That was more a statement of principle in the founding of these United States to begin with. The actual amendments are the component that outline what exact rights you have and no none of them are so vague as to just say 'liberty'.
Secondly while the consultation doesn't use the term 'immigration' anywhere in it it did set 'To establish an uniform Rule of Naturalization' in Article I, Section 8, clause 4. It was further expanded
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it did set 'To establish an uniform Rule of Naturalization' in Article I, Section 8, clause 4.
Yes, which was interpreted to mean citizenship. Both Jefferson and Madison authored letters sent by the Kentucky and Virginia legislatures to Congress declaring that the Aliens Act, which regulated immigration, exercised a power nowhere delegated to the Federal government in the Constitution.
Hamilton responded by claiming foreigners are dangerous and could pollute American ideals, and that people should not be made citizens "the moment they put foot into our country". He also stated that the 14-year ter
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The actual amendments are the component that outline what exact rights you have
The amendments don't grant you rights, they restrict government. Your rights come from God.
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The Jeffersonian Bible, with all mention of the divinity of Jesus stripped is a perfect example of his beliefs.
So perhaps your rights came from God.
Jefferson's came from some nameless prime mover.
Einstein's came from the laws of nature itself.
Mine come from, I suppose, biology.
That statement in the Declaration of Independence in no way endorsed the idea of our rights as coming
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Yep, let's go after the ones that actually commit the shootings. Should be easy, no? You just have to ask them, "Are you going to run amok with a military-style firearm with a large-capacity magazine?"
Of course, to actually stop them, this question needs to be asked ahead of time. Too everyone with a firearm....errr...everyone who is thinking about acquiring a firearm....umm...everyone who doesn't yet know they want to acquire a firearm....damn, I thought this would be easy.
I know, how about we wait until t
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I hope you're not talking about civilian guns like the AR-15 semi-automatic rifles, as that no military int he world is going to be using those.
They have select fire, full auto machine guns.
And 30 round magazines, are 'standard' capacity and have been for decades.
But regardless of semantics.....you're willing to throw the millions of law abiding, responsible gun owners under the bus, confi
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I guess when you hear a drunk driver plows into a group of people and kills/mames many of them, your first call is to ban cars and alcohol, right?
No, you blame the driver....
I'm OK with licensing gun owners like drivers, guns like cars, and establishing laws about ammunition like alcohol.
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I'm OK with licensing gun owners like drivers, guns like cars, and establishing laws about ammunition like alcohol.
You are only required to have a drivers license to drive an automobile on a public roadway. You are not required to have a license when driving in/on private property. Driving a car is not a right protected by Constitution from government infringement. Gun ownership is.
The simple fact is that the population is up in arms about an issue that statistically isn't the issue. They will be presented with a figure of 40,000 annual deaths caused by firearms alongside mass shootings. The whole issue is being distort
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The uncomfortable truth is that two-thirds of all firearm related deaths are suicides and of the remaining third nearly a third of those have a victim that is a young black man who was killed by another young black man.
Why would anyone care about gender and skin color when we are talking about gun violence? Does it not matter when people die if they are of a specific gender or skin color?
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Well, I think that is brought up to show that this is one of the chief areas of gun violence and no on talks about trying to end this or seriously do something about those areas in the US....Chicago and Baltimore spring to mind.
But the rest of what the post above this one was spot on....the gun 'violence' numbers are really badly skewed
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rather than deprive the VAST, overwhelming majority of US citizens that are responsible gun owners
Only 36% of US households own guns. You are asking me to risk lunatics with guns when the VAST overwhelming majority of US citizens are NOT gun owners?
Source: https://www.washingtonpost.com... [washingtonpost.com]
Guns are great at killing things. They should be regulated just as any other dangerous object.
You take out the suicides alone and the numbers fall drastically.
I see no need to adjust the statistics by ignoring one of the most important elements. Suicide attempts with a gun are far more deadly than other methods. Reducing access to guns keeps people alive. I like keeping people ali
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Whenever the demographics of a problem do not align with the population's demographics you likely have a problem one demographic is subjected to that exacerbates the problem for them.
Black men are overrepresented in firearm related murders. They're 33% of the murders but only constitute about 6-7% of the population (12.6% of the population is African American but that is split roughly between men and women). The is some other problem within that demographic and if it is solved it is highly probable that the
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Bullshit. The problem is access to guns. There may be some social issues as well, but I have seen nothing that looks like a real solution coming from the racists who say the issue is black on black violence. If the problem is access to hand guns, then limit access to hand guns. If the problem is just social, then I'm sure that you can find a soci
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might only reduce the overall death by firearms rate by 2-3%
I know automotive engineers who have dedicated their entire careers trying to reduce automotive deaths by less than 1%. I would be thrilled to reduce firearm deaths by 2-3%. The fact that you are OK with just letting people die is a position that I do not support. I would rather have those extra 2-3% survive than placate your desire to avoid oversight.
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Your position is to achieve safety at all costs. Gaining 1% additional safety must be counterbalanced against the infringement of rights. You take a stance of absolute security which is ultimately antithetical to the concept of liberty and freedom.
You can implement all the gun control you want and you will have zero impact on the amount of murder I and many others will conduct because the total murders we will conduct is zero. You have achieved nothing except infringing on my rights and the rights of others
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You take a stance of absolute security
I don't want absolute security. I do want reasonable security.
I want guns under lock and key except when ready to shoot.
I want gun users certified by passing a gun safety course that is no more intense than driver's ed.
I want background checks on all gun users, and background checks on gun owners.
I want limits on the total ammunition that can be loaded into a gun at a time.
I want limits on the total ammunition that a person can own.
I want guns under lock and key when transported.
I want public
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The AR platform functionally, is NO Different than any other semi-automatic rifle.
You can simulate a 'bump' fire with pretty much any semi-auto rifle on the market.
Even if they're not black and scary looking they
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And no the Red Flag laws do not include this. They give the accused a chance after the fact (usually 10 to 14 days later) to try and prove that he is not a threat (proving a negative is extremely difficult and unconstitutional in that the prosecution has the burden of proof, not the accused) in the hopes of getting
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They give the accused a chance after the fact (usually 10 to 14 days later) to try and prove that he is not a threat (proving a negative is extremely difficult and unconstitutional in that the prosecution has the burden of proof, not the accused) in the hopes of getting his property back.
Actually, the court has to prove that there is a real threat. Failing that, they can't keep the guns longer than six months. The law [legiscan.com] is quite clear, with statements like "if the judge finds by a preponderance of evidence" (i.e. if evidence can be provided to support the seizure).
The initial period is 7 days, however, "THE JUDGE MAY EXTEND THE TEMPORARY EXTREME RISK PREVENTION ORDER AS NEEDED, BUT NOT TO EXCEED 6 MONTHS, TO EFFECTUATE SERVICE OF THE ORDER WHERE NECESSARY TO PROVIDE PROTECTION OR FOR OTH
Social Credit (Score:4, Insightful)
So what you are saying is that before China had their social credit system America had one first. We just called it by a different name and kept this one secret until you ran into the invisible wall this creates with a big fat surprise DENIED!
Glad to finally see a judge doing their job for a change!
The Communists Had It First I'm Afraid (Score:2, Insightful)
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At least the terror watchlist watches for terrorists, rather than "political dissidents".
Are you sure about this? Perhaps you've seen the list? Seems like something awfully easy to abuse.
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"political dissidents"
Like when Tom McClintock was added while he was a state senator?
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before China had their social credit system America had one first.
People often mention this about the credit score in the US as well.... but from my understanding, I thought that China's system was stuff like.... you were overheard criticizing the government? Now you can no longer:
Use trains
Use planes
Send your children to good schools
Apply for good jobs
Hell I've seen demos of "pay with your face" vending machines and I imagine the system would stop you from using that, too.
And various other things? This list just seems like it makes it a pain in the ass to buy g
such a list seems so obviously wrong.... (Score:5, Interesting)
these aren't stupic folks I'm talking about, so how do they handle the discord in their mind?
legit question but not really interested in all the other hypocrisies right now, just this one
Re:such a list seems so obviously wrong.... (Score:5, Insightful)
Well, the founders failed to anticipate a few things.
The law we have is a legacy of the pre-automation age, particularly of judicial rulings weighing government interests against potential intrusions on liberty.
One result of this is that in US law, suspicion is assumed to be at worst a temporary inconvenience unless someone is willfully abusing their position to personally target you. This assumption wasn't a bad one; manual suspicion is costly in manpower to sustain.
Today, we have automated suspicion. Some data mining system somewhere can tag your name in a database and that tag can follow you around everywhere. Suspicion is far, far more pervasive, persistent and cheap. But we end up building such systems because when we consult the lawyers, they consult their case law and tell us it's OK.
If you want to see what liberty protections conceived of in the modern age look like, look at the human rights and privacy laws of the EU. Europe has different political values than the US, so we might not agree on things like the "right to be forgotten", but that's a question that wouldn't even have come up until the mid 20th Century.
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now, we have a personal cyber-shadow -- with very little accountablity -- that can neither be completely detected nor completely controled by us, which is unsettling consideri
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I have to assume they're not stupid but that would mean that they believe they are justified in some way
people always come up with good reasons to do bad things
lists aren't the problem, it's the implementation (Score:5, Insightful)
and yet it's fellow Americans that are defending its creation and implementation;
Keeping a list isn't the problem, but this *specific* list has several major issues:
1. it's hard to know for sure if you're on it (indirectly infringes on right of appeal)
2. there's zero oversight as to who gets added - lots of people and processes can add you and nobody reviews additions or can veto it before you get added (infinges on due process)
3. there's little to no information available as to why you got on it. (again due process) Also, whether or not this information is even SAVED is unknown. (violates government record-keeping laws and/or process of FoIA or other records disclosure)
4. it's almost impossible to get yourself removed, even temporarily (and because of #2 and #3, there's nothing preventing you from just getting immediately added back onto it) again violating right of appeal
This isn't quite as bad as a "secret law" but it's getting pretty close in a lot of ways.
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and yet it's fellow Americans that are defending its creation and implementation; it's difficult for me to understand how others that ostensibly had a similar exposure to the thoughts and intentions of our founding fathers can't see that such a secretive, non-due process way of stripping someone's rights(?) would ever be an acceptable solution to anything, all the while claiming fidelity to our country's founding principles
I think that these things come about because often times the folks who put them in place sincerely believe that *this* situation is different and requires *emergency* powers; look at how fast the PATRIOT act was passed and by how many yea votes. It is pretty hard to stand by and watch constitutional protections get in the way of a righteous bust. I think similar thinking goes on in some cop shops whereby they just *know* that the individual they have arrested is guilty but it looks like the system may let
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and yet it's fellow Americans that are defending its creation and implementation; it's difficult for me to understand how others that ostensibly had a similar exposure to the thoughts and intentions of our founding fathers can't see that such a secretive, non-due process way of stripping someone's rights(?) would ever be an acceptable solution to anything, all the while claiming fidelity to our country's founding principles
Because of marketing.
The "terrorist watch list" is the list that suspected terrorists are on. Taking it solely at face value, one could reasonably assume that the bar for getting on that list is quite high. This, in turn, is because the public consciousness generally defines a terrorist as "someone who commits mass murders for religious or political reasons". Based on that definition, the list of actual-terrorists in America would be a few dozen people, tops. Moreover, there's a reasonable implication that
Re:such a list seems so obviously wrong.... (Score:4, Insightful)
I *did* probably get a good grade in civics/social studies but that aside, the concepts of 'due-process' and forbidding gov't 'secret powers' as part of our country's founding fabric are covered at both high and low levels all throughout public education; they're basically mandated from 1st grade until graduation and from there it's possible to get more exposure in college, etc.
I'm painting in broad strokes here, and yes, I'm assuming that the regular USA public education has the above but no, an A+ is not required; might also assume that those that get into those positions of power all have a basic/college USA education and not a flunkie
so somebody at one time came up with the secret list idea and then it snowballed.....
so, given the assumptions, how does a person ever think that -- as an American -- it's okay to have such a secretive, non-due process?
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I *did* probably get a good grade in civics/social studies but that aside, the concepts of 'due-process' and forbidding gov't 'secret powers' as part of our country's founding fabric are covered at both high and low levels all throughout public education;
Even among those who are familiar with the concepts they often forget that due process is the government proving that you are guilty and not you having to prove your innocence. The lynch mob mentality still exists and that is what is exploited to gain public support for such violations of our rights.
US Constitution (Score:2)
It is very odd.
Of all the western democracies, the US has by far the strongest constitution that protects human rights. Certainly far stronger than the UK or Australia.
Yet the US also has the greatest abuses. A No-Fly list that you cannot appeal against, with no due process??? I'd like to think that that would not fly anywhere else in the world. And historically there was that little issue of slavery long after the UK abolished it.
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Seems to me that the problem is that Americans treat their Constitution like a religious document and instead of updating it, their courts just interpret it in ways that are obviously wrong.
Both the 1st and 2nd are very straight forward and yet there are all kinds of laws passed by Congress restricting speech and possession of firearms.
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Amending also opens a whole can of worms too. Some would be simple, modifying the first to restrict speech about military secrets for example, others such as modifying the 2nd or other types of speech, not so simple. Still, if the courts did their job, it would be motivation to amend. Look how fast the Constitution was amended to make income taxes legal after the courts ruled them unconstitutional.
Re:such a list seems so obviously wrong.... (Score:4, Insightful)
If Airplanes aren't mentioned they are within the State's or the People's powers, period.
mark of the beast? (Score:2)
"I keep forgetting, which Amendment is the Right to Fly in an Airplane again?"
So you'd be OK with a "mark of the beast" scenario where those (citizens not convicted of anything) not included in some group are not allowed to fly commercially, shop at grocery stores, own property, use hospitals, etc.?
I don't think any Amendments explicitly grant any of those.
The way it's been used thus far... (Score:2, Interesting)
Just today I heard about a congressman (I think it was John Lewis) who somehow got on the watch list, and was continually getting pulled aside at airports. Even with all his "influence" he was unable to get his name off the list for over a year. Meanwhile, it's still not allowed to deny someone a gun purchase for being on the list. So... what's the point? Has it actually prevented any terrorist attacks in all this time?
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Just today I heard about a congressman (I think it was John Lewis) who somehow got on the watch list
There was a different "John Lewis" on the watchlist, and the congressman was repeatedly stopped because the TSA agents were too incompetent to disambiguate common names.
Even with all his "influence" he was unable to get his name off the list for over a year.
Well, he did assault a police officer's baton with his skull on a bridge in Selma.
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Rep. Tom McClintock, R-Calif.
McClintock said he soon learned that a fellow state senator also had been placed on the list, as well as the late U.S. Sen. Edward Kennedy. McClintock said he at least had the state Senate sergeant-at-arms to work through to clear up the confusion - "something an ordinary American would not."
Still, he said it took months of working with officials and repeated petitions to the government to get his name removed.
https://www.mcclatchydc.com/ne... [mcclatchydc.com]
GOOD (Score:5, Insightful)
Any list that doesn't allow the accused to the opportunity to verify their inclusion or fight it should always be unconstitutional.
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No, I'm signing up to receive his list as soon as he publishes it. Seems like worthwhile info.
'bout damn time (Score:2)
That the judge thinks it can be made constitutional so long as the person on the list knows they're on the list and can appeal is disheartening though.
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Re:'bout damn time (Score:5, Insightful)
It's not blatantly obvious to you that your government can put you on a list and deny your rights to travel on a whim but gosh darn it that's ok so long as you can appeal it?
Sorry - that's BS.
I have no problem with having a list of people requiring further watching by the FBI - that's their job. I have no problem denying the right to travel if a person is being charged with a crime or even permanently denying that right if they actually did attempt to bomb a plane. But denying a person the right to travel with no criminal charges, with no civil charges, with not even a WHIFF of a crime being committed - but only because the person seems suspicious, hangs out with the wrong crowd is HELLACIOUSLY unconstitutional. it's being punished for pre-crime! Saying it's ok because you have the right to go through due process to get off the list - NO. You have to go through due process to get ON the list!
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Re:'bout damn time (Score:5, Insightful)
There's nothing wrong, or conceptually in violation with our constitution with a no-fly list or the other types of lists IMO.
But to comply with our constitutional due process rights such a list would require that:
1. There is a formal process defined to add and remove names and that process must be followed to add or remove names. That process would necessarily include review by multiple people.
2. That people on the list are notified of being on the list.
3. That people put on the list can know the reasons why they were put on the list and challenge their inclusion.
4. That there is a formal legal process to challenge inclusion including up to being heard by a judge and judged by a jury of your peers whether you should be included.
The problem we've got is that the intelligence agencies such as the CIA and NSA are involved in the processing of these lists. They hate to divulge information because it can reveal details about intelligence gathering so they don't want to reveal sources of information, nor do they want to tell people because the very composition of the list could reveal details about how the information was gathered. In addition these agencies are using automated tools to identify people and no algorithm is perfect. And most importantly is that the information these agencies collect would never satisfy the burden our court would put on such a process.
So what we've ended up with is a bunch of lists with no due process whatsoever. You can be put on the list and aren't told. You can't know why you were put on the list, in fact the law makes it illegal to disclose who's on it. You can't challenge your inclusion to a list and the only way to find out you are included is to attempt to travel. These lists violate just about every idea of due process we have.
I think if the real due process steps listed above 1-4 would strengthen the lists not weaken them. That doing this openly and legally would provide not just security in the system but would make the lists far more powerful and respected by the public. The fact that it's the way it is and has been for 20 years is a travesty.
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Spot on, at least in my opinion.
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Thus a secret list, that mostly only inconvenienced people and that there was no way to appeal being on it. And it is hard to even confirm you are on it. All that made it very hard to challenge it in the courts. Someone finally verified they were on it and found a way to file a legal challenge. It's no
Good decision! (Score:4, Insightful)
Everyone wins - No intelligence was allowed (Score:5, Interesting)
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Yeah, but just because one person was on there who belonged there doesn't make it a good thing.
Not quite (Pedant Alert) (Score:5, Informative)
Just to be pedantic, because it matters in this case, he didn't say the watchlist itself was unconstitutional. He said the watchlist system was unconstitutional because there's no way to appeal your listing in the watchlist. This leaves open the possibility of the same watchlist with some theoretical appeal system (even if it always results in rejection of the appeal, like binding arbitration).
I despise the list, it's very Soviet, but this is the sort of loophole the fascist assmunches behind it would exploit.
Re: Not quite (Pedant Alert) (Score:2)
I'm sure TSA/Homeland Security and these twenty Muslims and their attorneys will come up with a great solution, why force our elected leaders to clean up the mess they created almost 20 years ago?
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But they filed the watchlist in a cabinet inside a disused lavatory in the basement of an abandoned building inside an armed camp you're not allowed to enter without a Top Secret clearance ....
It was on us to go and inspect it to find out our names were on it.
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Maybe they'll find the list on Sept 20th while Naruto hiding from the armed guards.
Doesn't Make Sense (Score:2)
Finally. (Score:2)
It's only been almost 20 years coming...
from the well-i'll-be-darned dept (Score:2)
Of course it's Unconstitutional (Score:2)
Next thing you know, you'll tell us that the Border Patrol can't inspect our cell phones since that's in the Bill of Rights, and the whole Gestapo infrastructure set up on 9/11 is a farce that doesn't make us safer (which it doesn't)
Ok be that way. (Score:2)
I bet the UK's GCHQ would be happy to maintain these lists for us while we do the same for them.
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Monitor away. As long as there's a chain of evidence and everything is done constitutionally that isn't a problem. Barring someone from engaging in otherwise legal things, however, is not monitoring.
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Yes, zero monitoring is what's being proposed. Good job.
Fuckwits like you who can only think in hyperbolic terms are astonishingly annoying.
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Umm, no. Remember, we amended the Constitution to allow an income tax. And there's nothing about the phrase Federal Reserve Note that is unconstitutional, either expressed or implied....
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Simply put we the people are the militia, if we are unarmed we are not an effective militia and would be incapable of defending the free state. As we could be disarmed by either disallowing firearms all-together or (as some cities try to do) by not permitting their carry outside the home, the right of the people to keep and to carry (bear) arms shall not be infringed.
The 2nd is often deliberately misunderstood. But not in the way