Federal judge rules U.S. no-fly list violates Constitution • Hacker News Board

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

#61

Post by the_watcher » Tue, Jun 24, 2014, 8:31 PM UTC

unreal37 wrote: post #55

the_watcher wrote: post #35

Earlier quoted context omitted.

>> 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…

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

In many cases, this is likely true. However, the nature of the word (which doesn't have a definition clearly defining it), means that adding clear definitions to it begins to risk what the founders intended to avoid by not enumerating any rights (hence the Bill of Rights as amendments, including the 9th Amendment). Again, all this suggests to me that due process and equal protection, rather than creating a new, judicially defined right to travel, will be clearly clarified as the crux of the opinion should it hold. The higher court can just defer to stare decisis and judicial restraint on the rest.

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

#62

Post by chris_wot » Tue, Jun 24, 2014, 8:33 PM UTC

revelation wrote: post #47

middleclick wrote: post #6

"The 13 plaintiffs - four of them veterans of the U.S. military - deny they have links to terrorism and say they only learned of their no-fly status when they arrived at an airport and were blocked from boarding a flight." This truly fits the definition of a Kafkaesque system -- you are put on a list and you are denied justice and never told what your crime is. Great work by the ACLU.

Well, in many cases there is no crime . Given the ridiculous amount of people on the list and the way the form is designed, a large number will be on there due to a "mistake" in filling out the form. Theres an excerpt of the form here: http://papersplease.org/wp/wp-content/uploads/2014/02/vgtof-... Notice how you have to check the box to indicate someone is not to be added to the list. It is completely counter-intuit…

The court raises issues of quality assurance in their discussion of the issues surrounding the case. They noted the issues but made no judgement, but it seems likely to me that the Court wasn't very impressed.

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

#63

Post by lmkg » Tue, Jun 24, 2014, 8:33 PM UTC

jfoutz wrote: post #57

the_watcher wrote: post #35

Earlier quoted context omitted.

>> 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.

Due process is a guarantee made to citizens. The form it takes or method it is delivered by is not overly specific, and there is nothing about it that mandates it be scoped to one particular branch of government. If it's the executive branch handing down restrictions of liberty, well then I guess it's the executive branch that is responsible for ensuring due process.

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

#64

Post by [deleted] » Tue, Jun 24, 2014, 8:33 PM UTC

chris_wot wrote: post #59

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.

[deleted]

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

#65

Post by jacalata » Tue, Jun 24, 2014, 8:34 PM UTC

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…

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.

Why not?

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

#66

Post by the_watcher » Tue, Jun 24, 2014, 8:38 PM UTC

jfoutz wrote: post #57

the_watcher wrote: post #35

Earlier quoted context omitted.

>> 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.

Due process encompasses everything involved in the enforcing of the laws and regulations - from how evidence is collected to having your Miranda rights read to receiving notice. And yes, should the police strip you of your due process rights, your only recourse is to go to court (or flee the police, which opens you up to other problems). You'd likely get compensation for it though, and the police would be severely punished as a deterrent to future abuses.

To your last point, this is likely an issue - can a non-judicial, unelected, non-executive branch agency (I'm a little unsure of if there are agencies that aren't technically executive for Constitutional purposes, but I think most would agree that the FAA doesn't seem like an executive agency) add someone to a no-fly list? Is it civil? Criminal? Or simply regulatory (the agency could try and argue that it isn't being punitive, it just set up eligibility criteria that those on the list did not meet - a really tenuous argument, but it would be logically consistent and open up comparisons to things like qualifying for aid and slippery slope arguments about due process invalidating all those eligibility criteria).

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

#67

Post by chris_wot » Tue, Jun 24, 2014, 8:39 PM UTC

saraid216 wrote: post #50

Aqueous wrote: post #25

I do not believe a judge currently has to authorize someone's placement on the No Fly List, which right away raises red flags. So the No Fly List is definitely unconstitutional as it is currently implemented, but I wonder if it would be replaced a constitutional implementation. For instance, if FBI, CIA, or NSA had to clear a probable cause legal hurdle in order to place someone on the list, and if a judge, rather th…

I'm pretty sure such a constitutional implementation already exists: namely, they can just revoke your passport, which I think has to go through due process.

It certainly does!

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

#68

Post by chris_wot » Tue, Jun 24, 2014, 8:43 PM UTC

INTPnerd wrote: post #22

"Brown wrote in her 65-page ruling." 65 pages! They need some good programmers to help them refactor that to be shorter, more expressive, more readable, and changeable using the DRY principal and such.

It appears to be 38 pages. And actually it's very readable:

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

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

#69

Post by Zancarius » Tue, Jun 24, 2014, 8:43 PM UTC

Crito wrote: post #52

afarrell wrote: post #48

Earlier quoted context omitted.

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.

I think the idea there is that those with diseases like drug-resistant tuberculosis should be prevented from flying because of the risk it presents to other passengers. It's really a matter of degree: While both diseases can kill, and certainly influenza is far more virulent, you're less willing to take a risk with a diseases that's difficult to treat (if treatment is even successful) and is infectious.

I'd think the same thing would occur (or I'd hope so anyway) if a form of influenza popped up that was highly fatal and contagious.

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

#70

Post by the_watcher » Tue, Jun 24, 2014, 8:47 PM UTC

jacalata wrote: post #65

the_watcher wrote: post #43

Earlier quoted context omitted.

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…

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. Why not?

Because judges are hesitant to make such sweeping redefinitions of established law. Not that it doesn't happen, or taking a position on whether it's optimal, but it's incredibly uncommon, and generally frowned upon by the judicial and legal community. Even the most ardent judicial activists tend to favor change by increment.