Until the No Fly List Is Fixed, It Shouldn’t Be Used to Restrict People’s Freedoms

Minority Report Meets the No Fly List

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UPDATE 6/22/16: Following the Orlando shooting, there have been new proposals in Congress to bar people on watchlists from buying guns — you can read our latest response to those here.

The No Fly List is in the news this week, just in time for the ACLU’s argument in federal court on Wednesday in its five-year-long challenge to the list’s redress process. 

Last night, in response to last week’s tragic attack in San Bernardino, California, President Obama urged Congress to ensure that people on the No Fly List be prohibited from purchasing guns. Last week, Republicans in Congress defeated a proposal that would have done just that. "I think it’s very important to remember people have due process rights in this country, and we can’t have some government official just arbitrarily put them on a list," House Speaker Paul Ryan said.

There is no constitutional bar to reasonable regulation of guns, and the No Fly List could serve as one tool for it, but only with major reform. As we will argue to a federal district court in Oregon this Wednesday, the standards for inclusion on the No Fly List are unconstitutionally vague, and innocent people are blacklisted without a fair process to correct government error. Our lawsuit seeks a meaningful opportunity for our clients to challenge their placement on the No Fly List because it is so error-prone and the consequences for their lives have been devastating. 

Over the years since we filed our suit — and in response to it — the government has made some reforms, but they are not enough.

We filed the suit in June 2010 on behalf of 10 U.S. citizens and permanent residents who the government banned from flying to or from the U.S. or over American airspace. (Three more people later joined the suit.) Our clients, among them four U.S. military veterans, were never told why they were on the list or given a reasonable opportunity to get off it. Some were stranded abroad, unable to come home. As one response to our lawsuit, the government began to allow Americans to fly home on a “one-time waiver,” with stringent security precautions. 

Separately, the government made two basic arguments in its defense of the No Fly List, both of which the court rejected. First, it argued that U.S. persons had no constitutionally protected right to fly. In August 2013, the court disagreed, holding that constitutional rights are at stake when the government stigmatizes Americans as suspected terrorists and bans them from international travel.

Second, the government asserted that national security concerns meant the government couldn’t confirm or deny whether people were on the No Fly List, and it couldn’t give them reasons or a hearing before a neutral decision-maker. This is absurd as a practical matter and violates due process as a constitutional matter. Practically speaking, people know they are on the No Fly List when they are banned from flying and surrounded — and stigmatized — by security officials publicly at airports. Some of our clients were told they would be taken off the list if they agreed to become government informants. Again, the court agreed with us and held that the government’s refusal to provide any notice or a hearing violates the Constitution. As a result, the government announced in April that it would tell U.S. citizens and lawful permanent residents whether they are on the No Fly List, and possibly offer reasons.

Unfortunately, the government’s new redress process still falls far short of constitutional requirements. In our case, it refuses to provide meaningful notice of the reasons our clients are blacklisted, the basis for those reasons, and a hearing before a neutral decision-maker. Much as before, our clients are left to guess at the government’s case and can’t clear their names. That’s unconstitutional. 

There’s another important aspect to the government’s case at this stage. The government has emphasized that it is making predictive judgments that people like our clients — who have never been charged let alone convicted of a crime — might nevertheless pose a threat. That’s a perilous thing for it to do. As we’ve told the court based on evidence from experts, these kinds of predictions guarantee a high risk of error. If the government is going to predict that Americans pose a threat and blacklist them, that’s even more reason for the fundamental safeguards we seek. 

We disagree with Speaker Ryan about many things. But he’s right that people in this country have due process rights. We want to see them respected. 

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True Blue

What is even more disturbing is the number of "incidents" that flight crews create because passengers don't lick their boots. Given the # we read about is so high I can only imagine the actual # of passengers that are being denied their rights because somebody else is having a bad day or is a racist or homophobic, etc.

Chris L

So, will the ACLU be filing a lawsuit against the state of Connecticut? Seems they are doing exactly what you say shouldn't be done.
http://portal.ct.gov/Departments_and_Agencies/Office_of_the_Governor/Pre...

Publius

"There is no constitutional bar to reasonable regulation of guns".

What part of "shall not be infringed" don't you understand? The left's "reasonable" includes banning entire classes of guns and making carry discretionary, so that only the rich and powerful receive permits. How about standing up for ALL the Bill of RIghts?

Harold

This is the real danger with allowing a government to maintain a secret list of undesirables. Today, our government can prevent anyone whom they don't trust / like / agree with from getting onto an airplane. Now they want to extend the scope to gun purchases and the obvious follow-up, gun ownership. What about public housing and college loans -- we already deny this to convicted felons and, being on the no fly list is akin to being a convicted felon, no? What about federal employment -- why should we allow someone on the do not fly/buy list to possibly subvert the government from the inside? What about voting? Should we really allow people that are all-but felons to vote? What of public expression -- should we really allow people that the government has identified as "dangerous" to recruit others and subvert them with dangerous ideas?

I would think that the very people who believe that private ownership of firearms keeps them safe from unchecked government power would be absolutely terrified of a government who could take away their guns and their right to travel simply by adding their name to a secret list.

Anonymous

I live in CT and I'm Sooo ready to leave this state. I wish I knew what I could do to help stop these laws and help get people informed as to what's happening around them. We are being stripped of our constitutional rights, through means of fear and propaganda. It's too deceptive of governments to use tragedy to push their agendas. Inciting fear int he american public, and then acting like they are protecting us by taking away our rights. But all I'm truly afraid of is that this doesn't stop, it will only be the beginning. How long till we have a list for every amendment that allows the government to take away our rights.

I'd share my name, but then who's to stop it from showing up on the No Fly List!

Anonymous

They already know who you are.

Joseph Bach

I like this debate where two issues cross paths -- due process with regards to flying and the 2nd amendment.

The 2 main problems that I have with the pro-gun lobby are: (a) the technological advances in weapons have redefined in the eyes of the forefather the concept of a working militia and (b) the advances in society have changed the necessity for guns in an urban environment.

The concept of the militia was for effective fire power since a single musket on it's own was of little use. The technological changes in firearms have made this distinction no longer true. A single firearm can inflict as much damage or more as 20 muskets could. This leap in technology has not been addressed in discussing what Arms should folk be allowed to keep and bear.

The next problem is Urban environment. Is a weapon necessary? I believe not. The movement from a States right to an individual's right is flawed unless one removes the technological improvements out of the equation. The dangers that were present even in Urban environments at the founding of your nation no longer exist.

A working person requiring a firearm (i.e. rancher, farmer) does not require a weapon to fire off multiple rounds in a short time frame.

To move forward, the issue of requiring weapons to protect against the government can be resolved (a) increased regulations to ensure timely decisions in redress of issues against government officials/policy and (b) the ability to remove from any government position someone who the people have lost faith in their ability to govern or administer policy (government worker].

Robert

Sorry, but you're confused, and aren't alone.
The purposes of the right is to provide a military power independent of the state that represents the people in order to protect our individual rights as well as the country. We are essentially all militia under the Militia Act and always have been, and we are to augment the government and states in times of war, but also to keep the government in check through the threat of armed power in times of peace. The government uses weapons that fire repeatedly in a short time, so we need the same to effectively challenge them. We also do not trust the government to honor whatever arrangements that are made, so we will not accept any proposal that removes our direct right to use armed power against the government. Deals can be broken with impunity, an armed people cannot be.

Khalil Spencer

The ACLU's statement does not preclude a discussion of gun legislation. What the ACLU, and myself as a "card-carrying member", object to is the government regulating possession of guns (any guns, not just military style ones) using a secret process over which we have no control. The 2A is still a part of the Bill of Rights and any attempts to regulate individual gun possession must be done with transparency, due process, and without denying a citizen what Heller states is an enumerated right on the basis of a "prediction" that someone might commit a crime made under the guise of government secrecy.

That's what we are discussing here. Your two points can be easily discussed without the feds denying me a right and classifying the reason.

Elliander Eldridge

Observation: If 1,600 people share the same name as one person on a government terror watch list which prevents travel, and if changing their names removes them from this list, there is nothing to stop a real terrorist from removing themselves from a terror watch list simply by changing their name.

If the government would respond to that by adding the new name to the watch list, they would likely have to keep the old name on as well because they likely have old travel documents. This means that a terrorist could literally bring down the entire list simply by going through a list of the most common names in America, starting from the top and working through it as the name is changed. In fact, some of the most common last names in America are already on the list, so this scenario wouldn't be very difficult to pull off.

I'm not on these lists, but I stopped flying because I am tired of the hassle I get in general. I'd be terrified if these were expanded. It would mean giving the TSA authority over more and most locations.

What terrifies me more is what Trump wants to do: He wants to kill everyone on terrorist watch lists, as well as their entire families. He has said this on several occasions which leads me to believe that he means it.

I don't care if the person is Democrat or Republican. If they want to expand the list and cause more damage to American society with it I stand against it.

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