"In a decision issued Thursday, the panel found that U.S. District Judge Anna Brown erred in dismissing the case, filed on behalf of 15 U.S. citizens or permanent residents, for lack of jurisdiction last year. The appeals decision said Brown’s court does have the authority to consider the their complaint about placement on the list as well as to consider whether the government’s process for getting off the list is constitutionally inadequate.
It will be the first time that the federal government has to defend the validity of the process people must use to challenge their inclusion on the no-fly list, said Nusrat Choudhury, the staff attorney for the American Civil Liberties Union who argued the appeal before the 9th U.S. Circuit Court of Appeals."
People who are placed on the government's no-fly list are denied their constitutional right to due process, because the government's procedures to challenge inclusion on the secretive roster are "wholly ineffective," a federal judge ruled.
In a 65-page opinion issued Tuesday, U.S. District Judge Anna Brown ordered the government to come up with a new way for the 13 plaintiffs to contest their inclusion on the list that prohibits them from flying in or through U.S. airspace. The government must provide notice to the plaintiffs that they are on the roster and give the reasons for their inclusion, Brown wrote. She also ordered that the government allow the plaintiffs to submit evidence to refute the government's suspicions.
The decision marks a big win for the plaintiffs, all U.S. citizens or permanent residents, and the American Civil Liberties Union, which argued the case on their behalf. The plaintiffs have all been denied boarding due to their placement on the list, they argue, despite never having been charged with a terrorism-related offense.
The plaintiffs include Sheikh Mohamed Kariye, the religious leader of Portland's largest mosque, Masjed As-Saber. Kariye was refused boarding in 2010 and has been unable to travel overseas to visit his daughter or accompany his mother on a religious pilgrimage since.
In an email, the ACLU hailed the decision.
"For years, in the name of national security the government has argued for blanket secrecy and judicial deference to its profoundly unfair No Fly List procedures, and those arguments have now been resoundingly rejected by the court," said ACLU National Security Project Director Hina Shamsi, one of the attorneys who argued the case.
"Our clients will finally get the due process to which they are entitled under the Constitution. This excellent decision also benefits other people wrongly stuck on the No Fly List, with the promise of a way out from a Kafkaesque bureaucracy causing them no end of grief and hardships. We hope this serves as a wake-up call for the government to fix its broken watchlist system, which has swept up so many innocent people."
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Out of all the terrible, terrible stories in the ruling, what I notice most are the ones where the passenger is also not allowed to travel by land or sea. So I guess the logic of, "You are guaranteed to the right to travel, but not by any particular means," meets its death. No-Fly list means that you cannot travel internationally, period.
Also waaaay too many statements that the FBI offered to remove them from the list if they agreed to become an informant to be coincidence. Also, so many offers of 'one-time waivers'. The FBI obviously doesn't believe them too dangerous to fly, but they are using the No-Fly List to coerce them. How shameful.
Finally, the courts are becoming fully cognizant that the offspring of 9/11 are truly unconstitutional measures and means, and we have a government that has demonstrated it is willing to abuse whatever real or imagined authority it thinks it has.
It is high time, and should start to put to rest the timeless refrain of DHS minions that we "have no constitutional right to fly."
We may have no enumerated constitutional right to fly, but this court's record is now clear: DHS has no constitutional ability to stop us from flying without at least a semblance of due process.
This is very good news. The opinion itself seems well-researched. As expected, it cited Rahinah Ibrahim's case which has also been discussed here. This instant case, however, could have a much broader impact upon everyone who has been denied procedural due process through the no-fly-list scheme.
The court is moving slowly and methodically forward. As of now, the current no-fly-list procedure has been struck down as unconstitutional. But it has not yet declared what process should be adopted in its place. For this it is seeking input from the parties. For now, we just have to wait and see...
It is interesting that the "no-fly list" makes a mockery of the TSA.
What the list says to me is that the FBI believes that people on the no-fly list are so clever that the current system of passenger and baggage screening can't be trusted to stop them from committing terrorist acts and keep airline travel safe. Thus these people must be barred from all airline travel whatsoever.