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Federal judge rules U.S. no-fly list violates Constitution

reuters.com

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Re: Federal judge rules U.S. no-fly list violates Constitution

#51

Post by Crito »

unreal37 wrote: post #37
Crito wrote: post #20

Earlier quoted context omitted.

I think your statement requires a slight modification: There's no human being on Earth who is not guilty of any crime that is so dangerous that they cannot be safely put on an airplane. By all means, keep the convicted Son of Sam's of this world off my airplane. But somebody that the state finds themselves unable to convict of anything ? Give me a break. Either the state can prove that they are dangerous and need to…

People guilty of crimes should be tried and prosecuted. Judges should impose the sentence, and for serious crimes that probably includes a jail sentence which is the ultimate restriction of movement. If that also includes restricting their international movements as part of their sentence, fine. But simply having been at one time convicted of a crime should not automatically banned from air travel.

Yes, quite right.

Re: Federal judge rules U.S. no-fly list violates Constitution

#52

Post by Crito »

afarrell wrote: post #48
Crito wrote: post #20

Earlier quoted context omitted.

I think your statement requires a slight modification: There's no human being on Earth who is not guilty of any crime that is so dangerous that they cannot be safely put on an airplane. By all means, keep the convicted Son of Sam's of this world off my airplane. But somebody that the state finds themselves unable to convict of anything ? Give me a break. Either the state can prove that they are dangerous and need to…

It is no crime to have a highly airborne-communicable disease, but it is dangerous to be on an airplane with one.

Anybody with a disease that would warrant forbidding them from getting on an airplane is presumably being legally forcibly isolated/quarantined anyway. If not, then I see no problem allowing them on the airplane; the common flu is a "highly airborne-communicable disease", but we certainly don't stop people with the sniffles from flying.

Re: Federal judge rules U.S. no-fly list violates Constitution

#53

Post by the_watcher »

the_watcher wrote: post #35
unreal37 wrote: post #7

This seems like the right decision to me. Being blocked from air travel is indeed a violation of liberty. I think the U.S. government has a right to keep a list of suspicious persons, watch and monitor them, block them from visiting the United States, but there should be a way to appeal your inclusion on that list especially if you are a U.S. legal resident or citizen. You can't just remain on that list forever, unab…

>> Being blocked from air travel is indeed a violation of liberty. Very much depends on how permissive your definition of liberty is. Not trying to be pedantic, this is actually a pretty big issue in constitutional law. It does seem to be a violation of due process, at the very least. An aggressive attorney may even allege a violation of the Equal Protection Clause in skirting the rebuttal of "there is a way to chall…

A follow up on due process, from Wikipedia: notified of the accusations, to confront the accuser, to obtain witnesses and to retain counsel.

While Wikipedia is not case law, having done a year in law school, I can attest that those pages are some of the most accurate out there. Definitely seems as though the notice requirement, in particular, is not being met by the government, as the punishment (not being able to fly) is being discovered prior to the accused even having the limited options presented to them. There's also good arguments that their right to counsel and trial by jury is being violated (although there are some larger loopholes for avoiding those - namely that trial by jury and some other 6th Amendment protections only being available in criminal trials, which I assume the government would dispute, having never formally filed charges, as well as the hazy catch-all the US has learned to use - classifying those who it wants to treat as criminals without having to obey constitutional and legal standards as enemy combatants. I doubt they would resort to this, however, as it would be inevitable that someone misclassified would get some media traction, and potentially force a judicial ruling on enemy combatant status, which is not in US interests).

Re: Federal judge rules U.S. no-fly list violates Constitution

#54

Post by zenciadam »

the_watcher wrote: post #35
unreal37 wrote: post #7

This seems like the right decision to me. Being blocked from air travel is indeed a violation of liberty. I think the U.S. government has a right to keep a list of suspicious persons, watch and monitor them, block them from visiting the United States, but there should be a way to appeal your inclusion on that list especially if you are a U.S. legal resident or citizen. You can't just remain on that list forever, unab…

>> Being blocked from air travel is indeed a violation of liberty. Very much depends on how permissive your definition of liberty is. Not trying to be pedantic, this is actually a pretty big issue in constitutional law. It does seem to be a violation of due process, at the very least. An aggressive attorney may even allege a violation of the Equal Protection Clause in skirting the rebuttal of "there is a way to chall…

Freedom of movement is a human right. There is no real way to equivocate that without arguing in favour of a police state.

Re: Federal judge rules U.S. no-fly list violates Constitution

#55

Post by unreal37 »

the_watcher wrote: post #35
unreal37 wrote: post #7

This seems like the right decision to me. Being blocked from air travel is indeed a violation of liberty. I think the U.S. government has a right to keep a list of suspicious persons, watch and monitor them, block them from visiting the United States, but there should be a way to appeal your inclusion on that list especially if you are a U.S. legal resident or citizen. You can't just remain on that list forever, unab…

>> Being blocked from air travel is indeed a violation of liberty. Very much depends on how permissive your definition of liberty is. Not trying to be pedantic, this is actually a pretty big issue in constitutional law. It does seem to be a violation of due process, at the very least. An aggressive attorney may even allege a violation of the Equal Protection Clause in skirting the rebuttal of "there is a way to chall…

It's not pedantic. Liberty is definitely one of those rights that isn't 100% clear. The law is sometimes unfair/rough when it comes to balancing the rights of the individual against the rights of the state to protect against terrorism (real or perceived).

And then we go and revoke the passports of people who are behind on child support payments, which isn't even a crime, and suddenly restricting the ability of people to travel becomes something the government can use any time it wants without a court order with no clear reason why.

Definitely think this area of law can use some refinement to protect all interests more fairly.

Re: Federal judge rules U.S. no-fly list violates Constitution

#56

Post by chris_wot »

jevinskie wrote: post #10
unreal37 wrote: post #7

This seems like the right decision to me. Being blocked from air travel is indeed a violation of liberty. I think the U.S. government has a right to keep a list of suspicious persons, watch and monitor them, block them from visiting the United States, but there should be a way to appeal your inclusion on that list especially if you are a U.S. legal resident or citizen. You can't just remain on that list forever, unab…

Does this ruling imply some sort of "right to travel"?

Yes. In the ruling, the Court "has concluded Plaintiffs have a constitutionally-protected liberty interest in the right to travel internationally by air".

However, it goes further as they found that as per Mathews v. Eldridge, 424 U.S. 319, 333 (1979) the plaintiffs constitutional right to due process has been violated because:

1. not only do they have a right to travel internationally, being placed on the no-fly list stigmatises them as the government discloses the list to other parties (such as ship captains) and additionally deprives them of their liberty.

2. Notice is insufficient as there is inadequate information given to those on the no-fly list, because under government policy they neither confirm nor deny they are on the list. This leads to a catch-22 situation where you cannot appeal an erroneous decision as you cannot tell what that decision was.

Interestingly, the court said they couldn't determine if there were issues with judicial review.

There is a third test, which is to weight the government's interest against issues with disclosure, but this couldn't be determined by the Court.

The ruling is quite readable, btw. It can be found here:

https://www.aclu.org/sites/default/files/assets/latif_v_hold...

Re: Federal judge rules U.S. no-fly list violates Constitution

#57

Post by jfoutz »

the_watcher wrote: post #35
unreal37 wrote: post #7

This seems like the right decision to me. Being blocked from air travel is indeed a violation of liberty. I think the U.S. government has a right to keep a list of suspicious persons, watch and monitor them, block them from visiting the United States, but there should be a way to appeal your inclusion on that list especially if you are a U.S. legal resident or citizen. You can't just remain on that list forever, unab…

>> Being blocked from air travel is indeed a violation of liberty. Very much depends on how permissive your definition of liberty is. Not trying to be pedantic, this is actually a pretty big issue in constitutional law. It does seem to be a violation of due process, at the very least. An aggressive attorney may even allege a violation of the Equal Protection Clause in skirting the rebuttal of "there is a way to chall…

Great big IANAL here, but isn't due process something only the judicial branch can do? Do the police (i mean, the executive branch) get to strip liberties all willy nilly, and then you have to go to court to get those liberties restored?

AFAIK, it's not a judge that orders the addition to the no fly list, it's someone in the executive branch.

Re: Federal judge rules U.S. no-fly list violates Constitution

#58

Post by the_watcher »

recursive wrote: post #23
jevinskie wrote: post #10

Earlier quoted context omitted.

Does this ruling imply some sort of "right to travel"?

It's not really implied by this. It's one of the rights guaranteed by the constitution.

>> It's one of the rights guaranteed by the constitution.

Again, not trying to be pedantic, but this is another major point of contention in Constitutional law - how broad of a scope do each of the Constitutional named rights have? The 9th Amendment implies that it is extremely broad, as it explicitly reserves non-enumerated rights as falling under the Constitution.

DISCLAIMER: just to head things off, I bring up Roe v. Wade not because of the topic of the case, but because the general opinion on the ruling's use of the 9th Amendment is pretty consistent (and there are numerous subsequent cases that deal almost solely with this). There are many who agree with the outcome but have major reservations with the potential repercussions of the legal reasoning.

However, you can just look at the general consensus on Roe v. Wade to see that it's far from universally accepted that the 9th Amendment is that broad (that the crux of the opinion is very flawed, relying on a very strange and far reaching right of privacy derived from the 14th Amendment and 9th Amendment - neither of which mention privacy. To clarify - on both sides of the Roe v. Wade debate, most will admit the ruling was flawed, and when relying on it as precedent, nearly all judges will also refer to subsequent cases that address the problems with that ruling). So, the Constitution does not guarantee a right to travel (and the way this ruling is phrased suggests that an appeal would bring this as a concern, and in upholding the ruling, a higher court would almost certainly clarify this). A more likely argument (in terms of its strength in Constitutional law) is one that protects a right to travel as a part of the 1st Amendment right to free speech, expression, and assembly (so a negative right granting freedom from unlawful interference in travel by the government).

Re: Federal judge rules U.S. no-fly list violates Constitution

#59

Post by chris_wot »

unreal37 wrote: post #7

This seems like the right decision to me. Being blocked from air travel is indeed a violation of liberty. I think the U.S. government has a right to keep a list of suspicious persons, watch and monitor them, block them from visiting the United States, but there should be a way to appeal your inclusion on that list especially if you are a U.S. legal resident or citizen. You can't just remain on that list forever, unab…

Actually, being blocked from international air travel is considered to be a deprivation of liberty.

Re: Federal judge rules U.S. no-fly list violates Constitution

#60

Post by chris_wot »

the_watcher wrote: post #43
jevinskie wrote: post #10

Earlier quoted context omitted.

Does this ruling imply some sort of "right to travel"?

The ruling does seem to imply that, however, on appeal, that will almost certainly be clarified. No judge would actually argue for a right to travel so broadly defined that it would essentially remove all regulatory power over who can and cannot fly. The ruling will likely be clarified for precedent to mean that the right to due process includes a right to quickly and effectively contest designations by government ag…

There's nothing implied. The Court flat out says that denial of international air travel is a deprivation of liberty.
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