Federal Court Rules Government’s No-Fly List Is Unconstitutional

FAA logogavel2There is a major decision out of Oregon where U.S. District Judge Anna Brown has ruled that the government’s no-fly list is unconstitutional since there is no meaningful way to contest inclusion of the list barring you from commercial flights. Brown issued a 65 page ruling with the holding that the “inclusion on the no-fly list constitutes a significant deprivation of their liberty interests in international travel.” It is a refreshing opinion from the federal courts which tend to be highly deferential to the government in this area.

Central to the decision is Brown’s recognition that “international travel is not a mere convenience or luxury in this modern world. Indeed, for many international travel is a necessary aspect of liberties sacred to members of a free society.” We have all heard horror stories of how people are mistakenly placed on this list and how they find themselves in an endless bureaucratic process to correct such mistakes. The sheer stupidity of many of these mistakes has been shocking with government officials barring people with similarly sounding names to terrorists like Bin Laden or the cavalier addition of names despite the huge cost to the individuals. The list is a CYA moment for many officials who want to be more safe than sorry, but those unfairly placed on the list find themselves in a governmental nightmare of red tape and delay.

In this case, the the 13 plaintiffs insisted that they have no links to terrorism and only learned of their no-fly status when they arrived at an airport. Four of them are military veterans.

The decision is well-written and well-researched and worth reading. It finally imposes a modest obligation on the government to act in a reasonable fashion.

Here is the decision.

Source: NPR

102 thoughts on “Federal Court Rules Government’s No-Fly List Is Unconstitutional”

  1. anon


    In Riley v California the Supreme Court held today that: “The police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.”

    Thanks, Dredd. Unfortunately, they’ll probably keep right on doing it…
    I don’t think so.

    The convictions based on their doing it were thrown out.

    Millions of dollars of state money wasted.

    Rich states may do it for awhile, but they too will get the message when 42 USC 1983 lawsuits begin to further tap their treasuries.

  2. fiver, Please bless us with your self proclaimed superior thoughts with more name calling. Who’s the adolescent idiot? Hmmm.

  3. I say we have ACLU approved airlines where there is absolutely NO racial or ethnic profiling, and then airlines where passengers allow racial profiling voluntarily. Which airlines will succeed and which ones will fail. Hmmm? And you know what, the airlines w/ racial profiling will have many law abiding Muslims.

    1. If the ACLU and CAIR are going to set standards for who can fly, then they should fly along as air marshals.

  4. My mistake, Jim22. I didn’t realize that the adolescent idiocy of judging a book by its cover was the equivalent of “independent thought.”

    It always seemed to be rather the opposite.

    Have a nice day.

    1. Jill Why do you refuse to answer the question as to killing Ezra Pound during WWII? I think that is the perfect analogous situation since Pound was a US citizen, living, broadcasting, and doing work for the fascist side in WWII. He was taken and held as a POW for trial for treason, but he had lots of friends in high places that put him in a mental hospital instead of the gallows. My opinion is that had FDR ordered his villa to be bombed, it would be perfectly legal,moral, and a good idea. I guess the 8th Air Force had more pressing targets in view, so he escaped the just might of US bombs. The same hold true for al Awaliki. since he is involved in a group that is in armed combat with the US. My point about the previous murders of US citizens was NOT to justify them, quite the contrary since they were NOT engaged in ANY armed combat in any way shape or form. The only point is to make the FACT that Obama is hardly the first or ONLY President to use killing US citizens. So get off his case as though this is something new. In FACT he has not only done fewer such things, but unlike before, he has been OPEN about it. Thus subjecting it to our views and power of law. Most people would agree with me about killing Pound during WWII. The Brits sure did when they caught Lord Haw Haw after the war, and strung him up in jolly good style. Had they know where to address their bombs they would have killed him sooner.

  5. It’s funny how for liberals, the “Precautionary Principle” only applies to things like global warming but not for things like terrorism.

  6. Jim – that is a very racist comment. I am offended. I think I need a settlement.

  7. Tim McVeigh was a mass murderer, like the shooter at the Texas clock tower.

    When we have a massive movement glorifying Tim McVeigh, where governments in every single country in entire regions subscribe to his philosophy, then, YES, we should profile people who share that belief. Is this a question?

    And as I have pointed out multiple times, I hold the Israeli model up as extremely successful, because they can root out suspicious behavior regardless of nationality, and could care less about offending anyone when they profile.

    Correctly categorizing widespread Islamic extremism as a source of terrorism, violence, and human rights abusers benefits the oil industry??? Are you kidding? If Christians were making gays build walls that would then be toppled over to crush them to death, would there be a question about labeling that “bad?”

    Reason and rational thought have no part in this discussion. Moving on to more interesting topics . . .

  8. Karen, I agree. It seems that people who see everything through a racial lens only see racism.

  9. I took TheSaucyMugwump’s advice and read CFR 14.91.3.A. It says the pilot has final authority for the “operation of the aircraft” which I take to mean the pilot can GROUND THE PLANE i.e meaning ALL PASSENGERS. The notion that he can single out an individual for special treatment is NOT mentioned.

    Obviously RandyJen’s anecdote about the boarding procedure does not apply to part B regarding in-flight emergencies.

    I know it takes courage to be a pilot. Fear of races and religions can be a real fear without it being rational, logical or sound. Isn’t it difficult enough for a pilot to judge the airworthiness of the aircraft, judge the safety of the weather conditions, understand the complexities of a machine the size of an office building, and do all of these things perfectly?

    When it comes to judging whether or not individual passengers pose some sort of threat, there are other people who CAN and DO handle this responsibility. The only thing the pilot need concern himself with is whether or not these passengers were subjected to proper procedure. That is all we should ASK of him, or PERMIT him.

    If he fears for his life, then he should step aside and let another pilot take control.

    1. digital The FACT is that as captain, I DO have all the authority I need to refuse boarding to a person I think will be a problem for any reason. Period. The gate agents may wail, but I will use my authority if need be. Simple and you can ask Prof Turley or any of the other lawyers here about that fact.

  10. fiver, Professor Turley doesn’t send us talking points for our posts. I would be more disappointed if everyone here was in lockstep with each other. It sounds like you don’t like independent thought.

  11. randyjet:

    “I was not permitted to have even a nail clipper, yet Sikhs were allowed to have their KNIVES on board. I had to do a strip search, taking off my belt, hat, coat, empty my pockets, and dump all my ID badges on the scanner, cigarette lighters, cigarettes, change, and take my shoes off, even though they were special made to not have any metal in them. While a Sikh could keep their turban on, keep their sandals on, and simply walk through, AND KEEP THEIR KNIVES ON.”

    Sometimes I feel like we are in a Monty Python skit.

    1. Karen and James, It seems that Karen is the only person so far who caught the FACT that white skin “privilege” did NOT apply to me or other aircrew members. I find it vey disquieting that James has NO problem with my being singled out more as a one way pax and by being white. He has NO problem that a terrorist can dress as a Sikh and get a pass on security measures and bring knives on board legally. I find that to be a major security lapse, yet no mention of it. I hope that as more publicity gets out about this, that the Sikhs will be forced to conform to what the rest of us not so privileged to be Sikhs must endure. Will that be racist too James? Or is it only minorities who are presumed innocent until proven guilty? White folks do not matter to him I guess. Just as I found in our lawsuit that older white Vietnam veterans can be discriminated against legally and the government refuses to apply the laws which specifically are supposed to protect us against this kind of discrimination in employment.

  12. Max:

    Please re-read randyjet’s comment. He did NOT imply in any way that “white is right.” He was rather relieved he did not trigger a PC racial profiling complaint.

    He never said he gave the guys free drinks because he was white. Rather, the implication was that since the secondary screening did not uncover anything untoward, the free drinks were by way of apology. How do you arrive to the conclusion that if the passenger had been any other ethnicity, that randyjet would not have offered free drinks?

    randyjet – people are grossly misinterpreting your comments. It appears to be ingrained behavior devoid of critical thinking. Because in no way can they rationally justify their conclusions. They read a few key words and offer a trained response.

    1. Karen, As a long time liberal Democrat, and civil rights activist in my youthful days, I am rather disappointed to see the lack of intelligence on the left being almost as bad as that on the right. As I said earlier, I think that they go off half cocked, or hopefully in most cases crocked since I hope that such ignorance and inability to understand concepts is not congenital.

  13. Max and James:

    Are you unaware that people of Middle Eastern descent use the racial profiling card routinely, and the long list of lawsuits that has ensued? Randyjet is correct that if he had singled out a Muslim for extra screening, the ACLU would have caused no end of trouble.

    It’s a joke at the airport – infants and toddlers get putdowns while Middle Easterners sail on by. By the logic only a Liberal would apply, every single one of the terrorist attacks has been by Muslims, so do NOT for any reason detain Muslims or give them any added screening. Instead of focusing their anger on the widespread extremism causing violence around the globe, moderate Muslims complain about extra screening.

    As stated before, I like how the Israelis do it. They have methods that actually work, and can detect wrongdoers of any nationality. And they could care less about PC or who they offend. They are there to do a vital job.

  14. The casual bigotry on this thread is surprising.

    No, it’s not surprising that there are still such attitudes (even in 2014), nor is it surprising that these attitudes are being defended by the predictable and transparent denial and whine against “political correctness” (whatever that is).

    It’s surprising, and disappointing, because I didn’t think Professor Turley ran that type of site.

  15. randyjet,

    To clarify–other than the importance of leaving intact a pilot’s right to refuse boarding, (something not addressed in this ruling one way or the other) you agree with the actual ruling about the no fly list, right?

    1. Jill, I see that you missed my first post or forgot what I said. It is on the record for all to see. Unfortunately, many folks here have very short memories or jump in half cocked or crocked which ever might apply.I suspect the latter in most cases.

    1. Jim22 – no problem there. However, not sure what is charge and no charge any more. I am being charged for carry-on for my next flights.

    2. Most Muslims I know personally like a beer and alcohol on occasion. They have no problem with it. Now if you ask the Swiss since lots of Saudis nearly live there, they party HARD when they are out of Saudi. Hell, Salim Bin Laden was the playboy of the Western world and travelled around with his personal Swedish rock band he hired for his worldwide parties. He was also an avid pilot with lots of airplanes.

  16. Max-1, I think you are missing the point. I believe he was happy that they guy was white to avoid being accused of racial profiling. As for the free drinks? I have no reason to think he wouldn’t have done the same for a different race. When did he say, “And, because he was a white guy, I gave him free drinks”? I think you are looking for a story that is just not there.

    Again, I don’t know Randyjet, he might be the biddest jerk in the world, but I read his story and am willing to admit that if I was in the same situation, I too would be relieved that the person (Who was brought to him, he didn’t pick him out) in question was the same race as me to avoid all of the confrontations that can come otherwise.

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