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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Anonymous

When I hear stories of Holistic Practitioners strangely ending up dead , sorry but everybody should have the ability to protect themselves . The Second Amendment stays .

Anonymous

I saw a couple of comments about this. But just so everyone is clear, you do not have the right to fly. You do have the right to travel interstate, but it was later determined that flying is not one of those methods. So one again, you do not have the right to fly.

Anonymous

"stupid is as stupid does"

Anonymous

There are a few errors but the one glaring error is saying there is no constitutional bar to gun regulation, there is. The part that says "shall not be infringed." While I obviously don't think a neutron bomb should be obtainable to anybody. I know what the government's true end game is regarding any kind of gun control. The same as any government before it who disarmed its populace. Anybody who thinks otherwise is naive and stupid. Gun laws do nothing to stop gun crimes. Criminals don't obey laws. That's what makes them criminals. But the second amendment is there not for hunting, not for self defense, but for the populace to keep a government with tyrannical aspirations at bay.

MontieR

ANY and ALL of these "lists" that American citizens can be put on as stated have NO legal constitutional validity. The constitution IS the law and IN the constitution it says that ANY law violating the constitution IS NO LAW AT ALL. This no fly no buy list abrogates no less than three constitutionally validated, expressed rights. The simple act of voting for these egregious attacks on the constitution are a crime in and of themselves. Along with the idea that the constitution changes with the whims of the supreme court ( the "living" document fantasy).

HENRY

THE PROBLEMS WITH THE NO FLY LIST HAVE ZERO TO DO WITH PEOPLE BUYING GUNS. IT'S LIKE SAYING YOU CAR IS INCORRECTLY ON THE STOLEN LIST , SO WE ARE GOING TO LET ALL PEOPLE THE ABILITY TO DRIVE WITHOUT A LICENSE.

Ron Peacetree

A modest proposal for fixing the problem. 1= Being added to the TWL should require meeting transparent and consistently applied standards. 2= the evidence for meeting the standards for being on the TWL should be attached to the order adding someone to it, and available to appropriate legal entities and those added to review upon demand. 3= In cases where National Security concerns require greater restriction of said evidence, then those added should be given contact information for someone who can review said evidence with them. 4= Someone's name is not added to the TWL. Their =identity= is. Photo ID. Known bio-metrics. The whole nine yards. Thus we stop confusing 2 year olds for middle aged men with criminal records. 5= Given the sensitivity and potentially prejudicial information in the TWL, access to the list is restricted and access to any specific identity or case file on the list is restricted to those with a proven need to know.

Anonymous

I do not understand why the ACLU considers a "No Fly" list to be in any way constitutional. It would seem that the "right" to travel freely, without government control or approval, internal visas, etc. is a well-established right in the United States since its founding and would thus be protected by 9th amendment of the US Constitution. What is the constitutional basis for conceding to the federal government the power to limit or even deny this basic right? In addition, it does appear that placing someone on a "no fly" list -- whether secret or public-- would seem to amount to punishment without any due process. This appears to be what the argument that the ACLU makes, but this argument -- independent of its own merits -- essentially jumps over the more fundament question of whether the government acutally has the power to establish such a list. If it does, then what would limit the governments power to limit -- or even completely forbid -- any other kind of travel? You can make a "national security " argument for limiting or forbidding every other kind of travel or movement. And as we know, both Bush and Obama have argued that the US President has the right and power to designate any person -- both US citizens and non-citizens -- as enemy combatants" and order their death. As I understand it, to the extent they make a constitutional argument for being able to do this, they claim it is a "national security" issue and the President of the US is the comander-in-chief of the US armed forces and thus has broad powers (some argue almost unlimited powers) to make unilateral descisions regarding anything related to "national security". In short, the ACLU's position on the no-fly list -- while seeking to achieve some level of due process and transparency on this question -- would seem to sacrifice a very fundamental constitutional right. If I am wrong about this, I would appreciate a clear expectation as to why.

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