No-Fly List and Right to Travel (Latif v. Holder)

Discussion in 'Aviation Passenger Security in the USA' started by Mike, Aug 30, 2013.

  1. Mike

    Mike Founding Member Coach

    Have not had time to read this yet, let alone digest it, but at first glance this appears to be a major victory, need to see how this correlates with Kent v. Dulles (earlier right-to-travel decision by the U.S. Supreme Court):

    Victory! Federal Court Recognizes Constitutional Rights of Americans on the No-Fly List

    By Nusrat Choudhury, Staff Attorney, ACLU National Security Project at 2:31pm
    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.
  2. Mike

    Mike Founding Member Coach

    Just skimmed quickly through the decision ...

    Solidly based on Kent v. Dulles, and specifically noting the needs of international vs. domestic travel:

    The findings also relate the abusive government treatment of numerous citizens, most just trying to return home to their own country.
  3. Mike

    Mike Founding Member Coach

  4. Mike

    Mike Founding Member Coach

    Basically the gov't was handed it's (expletive deleted) on a platter. On the issues of the right to travel internationally and of stigma/reputation (being labeled a terrorist), the plaintiffs won, the defendants (government) lost.

    And the parties (aimed primary at the defendants/government) were told come up with a plan to be more forthcoming in providing the information that the court needs to decide the rest of the case.
  5. Frank

    Frank Original Member

    I'll believe the government got torn a new one when the judge denies the motion for a stay pending appeal.
  6. FliesWay2Much

    FliesWay2Much Original Member

    But, since nobody in government is ever held personally responsible, there is zero incentive to change anything.
  7. KrazyKat

    KrazyKat Original Member

    The economic repercussions of these listings--with security clearances as commonly required as they are--is a really big deal. I hope this decision helps break open the Kafkaesque redress conundrum, not just for NFL, but other unknowable security and suitability clouds on background check as well.

    It might not stop abuse, as FliesWay2Much points out, but redress is a big improvement all by itself. A little sunshine on the process will certainly help.
  8. Fisher1949

    Fisher1949 Original Member Coach

    At least the government has been consistently incompetent these days.

    It seems that they screw up over and over then waste days, weeks and months trying to double-talk their way out of the box they created for themselves.
  9. Mike

    Mike Founding Member Coach

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