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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NorwegianSteam

Regarding #2, we can do that right after there is a list for which candidates individuals voted for.

Seriously?

What's really sad is your inability to spell

Bryan

You, sir need to have your 1st amendment rights revoked. You clearly lack the training to be trusted with language in a public forum.

Tom

"There is no constitutional bar to reasonable regulation of guns", does this mean the ACLU supports the same for the 1st Amendment since there us no bar from regulating speech either. Personally I don't see the word "except" in either amendment, nor do I see that they can be regulated. What is reasonable to the ACLU? big guns, small guns, hate speech, distasteful art? That's fairly a subjective stance in my opinion and if applied to other amendments, as it could be, is very dangerous.

Anonymous

You don't see that they can be regulated? When the second amendment begins with the words "A well regulated Militia, being necessary to the security of a free State," you seriously don't see any provision in the Constitution by which guns can be regulated?

HawkAtreides

You say that as if there are not already regulations in place regarding what kinds of speech are and are not protected under the First Amendment, and regulations regarding even protected speech. Don't bury your head in the sand and then have the audacity to shout "slippery slope" in a crowded comments section.

Anonymous

Umm, have you actually read the constitution? The second amendment specifically uses the word 'necessity' and the phrase 'well regulated'. The first amendment does not.

Anonymous

This means that the ACLU has read D.C. v. Heller, in which Scalia does not say that all firearms regulations are invalid. There is plenty of room in the Second Amendment and in that opinion for firearms regulation. The court held that there is a fundamental self defense purpose to the Second Amendment. Outright handgun bans appear to be unconstitutional, because handguns are commonly used for self defense. It will be up to courts, ultimately the Supreme Court, to decide, as always, what the limits of reasonable regulation are.

FYI, there are limits to speech protected by the First Amendment.... Here's a primer: http://www.firstamendmentcenter.org/faq/frequently-asked-questions-speech

JLL

Article I, Section 8 of the US Constitution: "The Congress shall have Power... To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress... [and] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

JLL

Also, there is the Supreme Court decision in Heller vs the District of Columbia, written by conservative Justice Antonin Scalia: "United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes... Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."

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