The No-Fly List and Due Process

The Congressional Research Service has released a report on the no-fly list and current litigation alleging that it violates due process.

Posted on April 17, 2015 at 6:54 AM • 29 Comments


MarcusApril 17, 2015 9:12 AM

In the specific case of Americans, can anyone argue that it doesn't constitutes violation of due process (without which, no American can be deprived of their Constitutional Rights)?

A defacto- travel ban clearly interferes with the pursuit of happiness- the ability to get a job, to see people. If happiness is over yonder and I am forbidden from traveling yonder, I am forbidden from pursuit of that happiness.

I never understood how they were able to get this into law.

This is a good example of our historical notions possibly running face into our current necessities. Can anyone say definitively that the no-fly list can be dispensed with and not open us up to a WMD level of attack where tens of thousands die in one go?

I do think it's unconstitutional because it seems pretty obviously to be so.

As for non-Americans, well, they are not protected by the US Constitution so it's clearly legal for American airspace.

Interested to read the arguments. Great heads up.

ForrestApril 17, 2015 10:08 AM

@Marcus - did you read the report? It addresses all your questions, albeit from a different point of view: one, it's based on actual legal expertise rather than "I think the law should be saying this and that", and two, it doesn't conclude that that the whole thing is unconstitutional or constitutional, it merely examines how courts might rule, and why they might rule one way or another.

As for non-Americans, well, they are not protected by the US Constitution so it's clearly legal for American airspace.

Food for thought: Cole, David, Are Foreign Nationals Entitled to the Same Constitutional Rights As Citizens? (2003). Georgetown Law Faculty Publications and Other Works. Paper 297.

A Nonny BunnyApril 17, 2015 10:46 AM


Can anyone say definitively that the no-fly list can be dispensed with and not open us up to a WMD level of attack where tens of thousands die in one go?

We're still "open" to such an attack, even with the no-fly list. So, no. No one can give that guarantee. Nor can anyone say with absolute certainty that it has prevented any such attack, ever.

But suppose it does decrease the risk of 10k people dying in a year from, say, 0.001% to 0.0005%. Would that make it worth it? I'd say no. Neither as cost to the taxpayer nor as cost to society (in terms of inconvenience to people on the list that shouldn't rightfully be on there).

Of course I'm just pulling numbers from a hat here. Who knows what the real risks are.

MarlonApril 17, 2015 10:56 AM

"I never understood how they were able to get this into law." (Marcus)

90% of Americans share your puzzlement. Root cause is the destruction of the classic Anglo American Rule-of-Law. All American "law" (including legislation, regulations, policies, legal interpretations, and opinions by government bureaucrats) are now unhinged from fundamental legal principles. It's all about power now.

The mere existence of the No-Fly List is outrageously unconstitutional, of course -- but it doesn't matter in to your rulers. 'Legal conclusions' are always determined by those controlling the 'legal system' ... and "your" government thoroughly controls and manipulates that system.

MarcusApril 17, 2015 11:26 AM

Sorry for commenting before RTFA to anyone whose standards require such. Also, just a regular citizen trying to engage with my times as citizens do, but not a law scholar so if that's the standard of discourse you require before you refrain from talking at me like I work for you, please feel free to overlook my future posts.

The pdf is extremely enlightening, not boring at all, especially the second half where he gets into the back and forth between the courts and the govt. surrounding specific cases.

Interesting or new to me :

* the government meets with real adversarial energy from the courts when it steps outside outside of the FISA rubberstamp factory.

* even govt's claims of state secret's privilege is not absolute, it too can be overcome.

* international no-fly list is seen as more onerous an imposition on citizens and non-citizens and therefore subject to higher standards than interstate owing to the substitutibility of flying with other forms of transport in the case of interstate travel.

* the apparent deprivation of liberty involved in the no-fly list is legal if accompanied by due process,; a conviction (by a court, of a crime) per se is not needed to pass Constitutional muster.

* the slow winding through the courts of the govt. action is not headline stuff but is fascinating and even riveting in its own way.

GabrielApril 17, 2015 11:42 AM

Marcus, commenting before reading the article just to ask questions specifically answered by the article is just wasting our time, lowering the signal to noise ratio, and encouraging readers to close the tab (I almost did as soon as I began to read your comment, because I'm frankly uninterested in threads filled with the uninformed opinions of strangers.) That's why you received such a response, which I don't consider to be at all out of line.

BooApril 17, 2015 12:00 PM

Use market solutions. The current protesting wage slaves in the fast food industry want better pay. They have a strong time management skill set and can be making better wages speeding passengers through the aviation system. Of course with a no fast food list and slow food and fast jets everybody would benefit so it won't happen. The mail is getting faster with same day delivery via Gettysburg to Washington. Airline food was so rotten we filled dumpsters with it. That was before the whole system went bankrupt and became publicly funded. Get on the no mail list because all they send is garbage and junk mail.
We have bad food, bad mail, bad cars and trillions in bad debt. All the people are on the no money list depending on bad plastic cards. You can not fly without a list. Send everybody $4500 for new clunkers to keep the bankrupt car lots open and give them filling station cards. Congress created jobs losing $3 billion. Gulf of Mexico is on the no fishing list. Cuba is off the terrorism list. Europe about to be terrorized by Russian bikers. They should of put Snowden on the no fly and no computer list. You can't protect them from themselves though.

MarcusApril 17, 2015 12:22 PM

" because I'm frankly uninterested in threads filled with the uninformed opinions of strangers."

OK well, I am uninterested in off topic, unthoughtful opinions, I can see that but that's not what you're demanding from people.

You're saying that people who are not informed (to your standards) should not engage online and express their thoughts, their questions and opinions... you know discuss things. Since most people are not subject matter experts in any sense on most topics, but have naive views across the board, most people should just not post, not learn except through passively hoping someone who does post brings up their concern.

You see no distinction between people engaging on-topic in a thoughtful if non-expert way and incoherent, off topic posts (noise).

Is there something in your opinion I am supposed to think is clever, insightful or constructive?

It's purely destructive. It's designed to intimidate people through censure, and worse, it will only intimidate people who have the intelligence to doubt their own views. The trolls (in case you haven't noticed) will continue to merrily troll away .

What you're saying is enormously elitist, repressive and as such bad for the kind of ad-hoc education of the public that takes place in forums like this all the time all over the internet.

vas pupApril 17, 2015 12:24 PM

@Forrest • April 17, 2015 10:08 AM.
US Citizens and foreign nationals legally in the US have close, but not the same set of rights just because citizens have more duties as well. E.g. life and liberty is for both groups protected and derived out of Bill of Rights Amendments (due process, 4th and 5th, etc.) but I doubt that illegal foreign nationals have any entitlement for their pursuit of happiness(like demand to stay in the US), i.e. any right to demand from US government except those human rights based on UN charter, There is no right to be admitted into US for residence for foreign nationals - that is privilege granted by US government based on all factors related including economical in particular in each case through established process of application.
I mean front door for immigration should be wide open (under conditions above) but back door should be finally closed for good. There is nothing xenophobic in this statement - just practice when those who follow law should be always in better condition and better protected than those who are not.
Level of protection and rights for foreign nationals should be based on reciprocity with their country of origin towards US nationals there as well.

Wile E. PostApril 17, 2015 1:43 PM

Wait! You mean there's actually a list where, if I'm on it, I can't pay hundreds of dollars to be packed like a sardine into a flying gasoline bomb after having my junk groped by a former Burger King employee? SIGN ME UP!

BooApril 17, 2015 1:59 PM

Washington DC is a no fly zone. Put it on the list with Bedrock and the Slate Co. and sell bowling balls. Fred for mayor! All the fast food people can join the slow food movement and work with Jetsons Age airspeed ventures.

CuriousApril 17, 2015 2:31 PM

Does anyone know Statistics for the "No Fly" list? Total number of list. How many US born citizens on it? How many US citizens, not born in US, but Legalized? Is there a public listing of who is on the "No Fly", or does one only find out when the individual tries to purchase a ticket, or is it, when they try to board a plane?

What would happen if someone tries to get a PassPort and is on the list?

Have you personally ever seen someone who was being denied the right to get on a plane? Or have a good story from someone you trust.

Bruce, how about an article on how, we are, as a society being defined by the quality of ID we have? We are treated differently by how we are recognized in the US country. Like there is a huge difference between someone who travels all the time, has had the same job for ten years, four good credit cards, rather than the junk-scam credit cards I have.

In Security Theatre, there is the aphorism from Chess: "The threat is stronger than the execution."

BooApril 17, 2015 3:38 PM

"I think the educational and psychological studies I mentioned are examples of what I would like to call cargo cult science. In the South Seas there is a cargo cult of people. During the war they saw airplanes with lots of good materials, and they want the same thing to happen now. So they've arranged to make things like runways, to put fires along the sides of the runways, to make a wooden hut for a man to sit in, with two wooden pieces on his head to headphones and bars of bamboo sticking out like antennas--he's the controller--and they wait for the airplanes to land. They're doing everything right. The form is perfect. It looks exactly the way it looked before. But it doesn't work. No airplanes land. So I call these things cargo cult science, because they follow all the apparent precepts and forms of scientific investigation, but they're missing something essential, because the planes don't land."

They have no flying without lists. All the chief dreams of is an outboard motor for the fishing boat. Cult of DC dreams of more lists and debt to pay for it. Build a bamboo airfield in front of the Capitol!

BooApril 17, 2015 3:48 PM

Every Friday night is John Frum night, where all the followers get ... and paint the ends of their bamboo sticks red to signify American rifles...

I assume no planes ever came?
Nope. It only really happened on Tanna, after the cults fizzled out on all the other islands, and they've stopped doing that there now too, because planes bring tourists and money to the island every week anyway. Although, some of the elders still go to the airport every day and wait for planes to arrive, in the hope that John Frum might be on one of them.

With any luck the TSA will fizzle out. They got your bottle of fizz though. The other guy has the bam, I got the boo. Fo Shizzle!

FromWhatIsawApril 17, 2015 4:14 PM

I only saw a small sub-set of the No-fly list, about 25,000 names.

Most of them were just variations of spelling the same thing.
Usually 'CAT' and 'STEVENS'

RTFMApril 18, 2015 9:41 AM

What you won't hear about in US sources are the actual binding legal constraints on TSA. That's because for 70 years the US government has been frantically trying to keep them from the subject population.

Under Constitution Article 6 and the Supreme Court's Paquete Habana decision, the following is federal common law and the common law of every state:

Article 13.

(1) Everyone has the right to freedom of movement and residence within the borders of each state.
(2) Everyone has the right to leave any country, including his own, and to return to his country.

So the idea that US and foreign citizens have different legal rights is a lie. And that uniformed TSA prole is talking out his ass when he tells you, 'this is the border, you have no rights.'

But how exactly do you put that into practice? The following is supreme law of the land equivalent to federal statute, to which US law at all levels of government must conform:

ICCPR Article 12

1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

2. Everyone shall be free to leave any country, including his own.

3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.

4. No one shall be arbitrarily deprived of the right to enter his own country.

You'll notice that under (3), TSA's so-called law must be consistent with all the other enumerated rights. For example, since we're talking about the increasingly debased concept of 'due process,' the rigorous and independently reviewed equivalent law is:

ICCPR Article 14

1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;

(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

(c) To be tried without undue delay;

(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

(e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court;

(g) Not to be compelled to testify against himself or to confess guilt.

4. In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.

5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.

6. When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.

7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

When you apply that binding legal standard to the no-fly list, it crashes in flames. When someone says that the no-fly apparatchiks use due process, they are full of shit.

For more specific guidance in how TSA can comply with the law when pulling rules out their ass, specific interpretive guidance on the right to freedom of movement is set out here,

The moral of this story is, US law is void, fake, predatory bullshit. Always check it against the minimal standards of the civilized world.

uh, MikeApril 18, 2015 11:23 AM

A possible alternative: when the government withholds subpoenaed evidence, interpret the missing evidence in a light favorable to the plaintiff. Spoliation, baby!

BooApril 18, 2015 7:22 PM

The suicide democracy only works when you only have one party like Russia. You can have one airline too and the party will have a monopoly on crime and the government will be the terrorists. Stop the terrorists, the Russians, the whatever they are they are all the same. They're all religious or using religion as a cover story.

kevinApril 20, 2015 6:17 AM

Food for thought: Cole, David, Are Foreign Nationals Entitled to the Same Constitutional Rights As Citizens? (2003). Georgetown Law Faculty Publications and Other Works. Paper 297.
The question alone is baffling: the constitution refers to "persons" in most rights (most of them) and "citizens" for other (voting, for example). So how the fuck can you write a 22 page report about whether foreign people are, indeed, "persons"? Of course they are! This redefining of words is beyond ridiculous. Foreign nationals are persons! Corporations are not people, people are! Collecting data on your citizens includes collecting data but not looking at them! Gathering 'metadata' is surveillance as much as gathering 'data' is! *sigh*....

rgaffApril 20, 2015 5:10 PM

As for non-Americans, well, they are not protected by the US Constitution so...

It always gets me when people start saying things like this... because it usually concludes along the lines of: non Americans have no human rights? are not human? are animals? slaves? dirt? dogs? swine? cockroaches? the list goes on and gets even more derogatory... what the heck is the matter with Americans that they think they're the only privileged people in the world....

It is a GROSS misrepresentation of the US "Bill of Rights" to believe that it GRANTS rights to Americans, and therefore all non Americans have no rights. In fact some of the US founding fathers were AGAINST WRITING a Bill of Rights in the first place, because they were deathly afraid of this very interpretation. Rather, it's supposed to be a RECOGNITION and a kind of GUARANTEE of rights that ALL HUMANS ALREADY POSSESS, whether it was ever written down or not... So therefore since the Bill of Rights can not "grant" something that is already possessed, it doesn't exclude rights from one group of people over another... all people, regardless of citizenship.

The only way the US Constitution and Bill of Rights can "GRANT" human rights to the American people... is for it to be widely recognized that ALL PEOPLE EVERYWHERE HAVE NO INHERENT RIGHTS WHATSOEVER (including Americans)... and all people are enslaved by default. Only slavemasters can "grant" rights to the enslaved. The free already have rights, merely by virtue of existing, and cannot have them granted by any law or authority or taskmaster.

rgaffApril 20, 2015 11:55 PM

And so... is America the land of the free? or the prison of the enslaved? You choose, America, by how you treat non Americans! That is how you value all humans, including your own.

WWIIIApril 24, 2015 10:21 AM

We the People ratified the constitution only after inclusion of the Bill of Rights.
Those ten amendments are in plain english and mean exactly what they say.
The limit government authority in many cases that were anticipated by the kings thugs before the patriots revolted.
Non of the expert opinions on the meaning of those rights, whether by John Yoo or Albert Gonzales or roberts alito scalia of the Supreme Corrupt have ever been ratified by we the people so the Bill of Rights that has been Denied by every one of these shysters opinions is betrayed and only patriots will fight the corrupt system to retain these rights
When you quote these "experts" weasel words that strip all meaning out of each of the enumerated and implied rights you are looking in the face of authoritarianism, not freedom.

NathanaelApril 29, 2015 10:19 AM

Worth noting that the so-called "State secrets" privilege has no constitutional basis.

It's derived from a rogue ruling by a court in the 1950s -- US v. Reynolds (1953) -- where the court made it up out of the whole cloth for a particular case.

In *that* case it turned out (decades later) that the government was using "state secrets" as an excuse to conceal government misconduct. (There were no state secrets.) There is no basis for the state secrets privilege.

Claims of "state secrets" more recently have all proven to be the same thing -- attempts to cover up government misconduct.

Any time someone claims a "state secrets privilege", you should recognize that they are an enemy of the United States -- a traitor. Such people are very dangerous and we need to have them publicly executed.

(There are entirely separate traditions which allow for actual secrets to be protected... but not for them to be concealed from the judge, as "state secrets" does!)

NathanaelApril 29, 2015 10:22 AM

"Can anyone say definitively that the no-fly list can be dispensed with and not open us up to a WMD level of attack where tens of thousands die in one go? "

Yes, I can say that definitively. Pretty bloody obvious. The no-fly list has no useful function at all. If someone is actually dangerous, they need to be *arrested* or *monitored* or *searched*, not just put on a "no-fly list".

The "no-fly list" is mainly used to harass American citizens who take foreign trips. It's been repeatedly used to violate international law by preventing American citizens from returning home to their country of citizenship (a right protected *absolutely* by international law).

The US is a rogue state. Eventually the rest of the nations will have to figure out what to do about it.

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