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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Bob

I was denied a boarding pass,,,had to talk to 3 different TSA dudes, One kept his hands on his gun and after the third guy finally printed me a boarding pass, I asked WHY????? This was in Seattle. When I was to fly home from San Diego, the same thing and again with guy with hand on gun....after the third guy finally printed my boarding pass and I asked WHY??? He did tell me someone with my same name was on the NO FLY list and to go thru the Homeland Security Redress program. I sent in al my info and about 10 weeks later I got my REDRESS # and letter. It was a bit of a pain and only had problems once since, I pulled out my REDRESS letter and chipped passport and I was given my boarding pass and on to the plane I went. It sucked a bit, but then again what are we to do in this age and time. It wasn't soooo bad and if that is what it takes then fine, Much better than everyone being scared and thinking they need to carry a gun with finger on the trigger

Marlene

That is exactly what happened to me several years ago in Florida. I flew from Baltimore to Ft. Lauderdale with no trouble but a week later when I was trying to get my boarding pass to come home, they told me my name was the same as someone that caused trouble on a plane. They gave me my boarding pass but told me to call the TSA who told me to apply for a redress number. No one has ever explained to me why I'm on the list, how I can be removed or if I'm still on the list. It's so ridiculous because I've been held back from boarding the plane until last, I've been searched before boarding a plane after I've already gone through security and my bags are usually in disarray with a note stating they searched my bags. I'm disgusted because I was born and raised in America, I've never done anything wrong, no one can tell me anything yet I'm on the no fly list or watch list and now I will not be able to buy a gun because another human claimed I'm a terrorist.

Joseph Dwyer

Well said!

Anonymous

Now, imagine you live in the state of Connecticut and you are a gun owner. Instead of finding out that someone with your name has been added to the list, instead a police swat team knocks down your door in the middle of the night and shoots your dog. The apologize but it's just too risky for you to own firearms, so they crack open your safe and seize your collection and your permit. Instead of waiting 10 weeks, you are forced to wait 18-36 months for a hearing, where they may or may not rule in your favor. Sounds more like 1930s Germany to me.

Bob G

Bob, sorry to ruin your story, but TSA agents DO NOT carry guns. Lying saying ",,,had to talk to 3 different TSA dudes, One kept his hands on his gun...." It is people like you who make up lies in a story, that makes others look bad.

Elliander Eldridge

@Bob G

While it is true that TSA agents do not have arrest power and do not carry guns, airport security does. It's easy to confuse the two in a tense situation and his story is common enough that I am inclined to believe he is telling the truth.

A Merican

Bob, you are a fu cking sheep. Enjoy your servitude.

Ben

I agree, that is totally the correct position to have in this matter. Once again ACLU shows it is true to the constitution!

Skeptic

Errors aside, is the criteria to put someone on a no fly list anything more than "suspicion"? No matter how strong, suspicion should not be, IMO, grounds to deny civil liberties. "Predictive judgements" remain one side of an opinion. A subjective opinion made by a group with a vested interest in erring on the side of (alleged) security concerns. It is in the assumption that "predictive judgements" actually have merit that I see the greatest threat to civil liberties. Even with due process the government can, and does, successfully hide behind the states secrets argument, making calls for due process practically a limited effort. Sad that we have reached a point where unvetted suspicion has a legal consequence.

the boss

this is sad,
1 the no fly list seams like it would be ileagle
2. it would not hurt to make a record of who has guns.
3. this should not be happaing

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