Federal Court recognizes constitutional rights of Americans on the "No-Fly List"

A federal court took a critically important step 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.

The ACLU represents 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.
https://www.aclu.org/blog/national-security-technology-and-liberty-racial-justice/victory-federal-court-recognizes

Who can remove your name from the "No-Fly List" or a gov't. watch list? Answer: no one:
http://massprivatei.blogspot.com/2012/05/if-youre-on-no-fly-list-or-another-govt.html

Our Constitution doesn't disappear if a citizen is placed on the  "No-Fly List":
http://massprivatei.blogspot.com/2013/03/our-constitution-doesnt-dissapear-if.html

U.S. citizen/political activist put on the "No-Fly List"
http://massprivatei.blogspot.com/2012/10/us-citizenpolitical-activist-on-do-not.html 

International travel by air is a Constitutional right:

In a preliminary ruling in a lawsuit brought by the ACLU three years ago on behalf of a group of people who have been prevented by the U.S. government from traveling by air, a Federal judge in Oregon has found (1) that international air travel is a Constitutional right, and (2) that a categorical ban by the government on the exercise of that right can only be issued in accordance with due process.

Those shouldn’t be surprising findings. But given that the U.S. government has never sought to follow normal legal procedures by asking a court to issue a no-fly injunction against an individual, and that none of the goverment’s extrajudicial administrative no-fly orders has ever been reviewed on its merits by any court, the latest ruling by District Judge Judge Anna Brown in the case of Latif et al. v. Holder is an important step toward bringing DHS controls on travel within the rule of law.

The ruling is the latest in a series of decisions which have finally begun to uphold the right of travelers to due process and juducial review of the restrictins on their movements. The decison in the Oregon no-fly case echoes similar findings in the past year by the 4th Circuit Court of Appeals in the case of Gulet Mohamed and by the 9th Circuit and the District Court for the Northern District of California in the case of Rahinah Ibrahim.

The government will neither confirm nor deny whether anyone is or has ever been on the government’s no-fly list.  But each of the plaintiffs in the Oregon lawsuit has been prevented from boarding international flights to and/or from the USA, or has been on a flight that was denied permission to land in the USA becuase they were on board.

The government first tried to claim that the court had no jursidiction to hear such a case at all. After that argument was rejected by the 9th Circuit on appeal, the government tried to get the complaint dismissed on the grounds that the plaintiffs’ rights hadn’t been violated, even if the government had forbidden airlines to transport them, they could have traveled by other means.

Judge Brown was quick to reject this argument, and to distinguish the difficulties faced by those seeking to travel internationally (many of the plaintiffs have families and/ort jobs overseas) from the  restrictions on domestic air travel that were at issue in Gilmore v. Gonzales

Read more: http://www.papersplease.org/wp/2013/08/30/international-travel-by-air-is-a-constitutional-right/