No-Fly List Ruled Unconstitutional

Aiplane aisle seat 2

Life, liberty and the pursuit of happiness are three inalienable rights in the Declaration of Independence. Now add international travel to the list. A federal judge in Oregon has declared the no-fly list, which is kept secret and gathered from classified information, violates Americans’ constitutional rights. Nor is there a process to give Americans on the list an effective way to challenge their inclusion.

Writing with an extremely sharp pencil, U.S. District Court Judge Anna Brown ordered the government to revise its no-fly list. Her ruling hangs on the belief that Americans must be free to travel and challenge being blacklisted.

“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,” Brown wrote in her 65-page ruling.

The Department of Homeland Security purports it has a way to challenge inclusion on the list, but Brown ruled “it does not provide a meaningful mechanism for travelers who have been denied boarding to correct erroneous information in the government’s terrorism databases.”

The American Civil Liberties Union argued the case on behalf of 13 Muslim Americans. Four are U.S. military veterans. The suit was filed back in 2010 after the claimants were barred from boarding aircraft. None faced criminal charges.

All 13 wanted to know why they are barred from flying and sought to clear their names. But the DHS ignored requests for information.

Brown ruled the DHS must cook up a “meaningful procedure” to explain why a person ends up on the hit list. Passengers need a process to correct DHS information. Otherwise, it “violates due process guaranteed by the U.S. Constitution,” Brown wrote.

The FBI, which maintains the no-fly list, say there are about 20,000 names on the no-fly list. Only 500 of those are U.S. citizens.

Airline officials or government agents sometimes inform people they are on the no-fly list. But the DHS won’t confirm status. Passengers find out they are not allowed to fly only when trying to board, according to the petition filings.

Brown ordered the government and plaintiffs to file a report by July 14 with proposals for next steps.

The judge believes telling someone they are on the list and giving them the reasons “would not heavily burden the government and would have a significant impact on the accuracy.”

The U.S. Department of Justice said it is reviewing the decision.

A lawyer for the ACLU applauded the decision, saying it provides “the promise of a way out from a Kafkaesque bureaucracy.”

The Tarmac’s View:  Imagine the horror if by slight of hand you were placed on the no-fly list. There are proven cases where innocents were fingered. Most likely it happened to the 13 plaintiffs in this case.

The Tarmac supports Brown’s decision, which was long coming and orders the government to find a way for people placed on the no-fly list to challenge their inclusion. We also agree that the government must notify those on the list and give reasons for inclusion. We deserve to know who is minding the store.

Our three branches of government are a democracy treasure designed as a check in the system. This week, in the Brown ruling, that’s what happened. The pursuit of flying is a right we all deserve, until we are proven to have criminal intent.

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Comments (Showing 1 of 1)

  • joshwex90 at 7:25am June 27, 2014

    As I understand it, the issue isn’t the list in and of itself, but rather the implementation of said list. Brown would seemingly allow the list assuming there was an easy to confirm presence (or lack thereof) on the list, and a simple way to challenge.

    If I could head to noflylist.dhs.gov, put in my name and last 4 digits of SSN and maybe some other identification information (license #, passport #, etc.) and it would say, “You are on the list – click HERE to see why and challenge.” Then, there was an exact reason, and a form (with claim number) to challenge, giving the government a specific time within which they must respond, that would seem to begin to satisfy Brown.

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