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. As Benjamin Franklin observed “Those who would trade liberty for security deserve neither” Congratulations to the Federal Judge who upheld the Bill of Rights

  2. Chuck,

    Sounds like those corporate passengers like to fly coach I mean, Roach.

  3. Al,
    That reminds me of a funny story. After my twin Cessna had been damaged in hailstorm, I took it over to Mena, Arkansas for some major skin repairs and a new windscreen (windshield to the automobile-minded). There are several major maintenance facilities at Mena (yes, THAT Mena, Arkansas airport).

    As the owner of the maintenance shop walked around the plane with me, clipboard in hand, he pointed to the other side of the field. There was an MD-80 (or DC-10 if you prefer) parked on the ramp in front of one of the big shops, painted in airline markings I had never seen before. He said it had been bought from an airline in either India or Bangladesh by somebody who wanted it refurbished as a corporate business aircraft. He said when they started cleaning it up, they had to use an industrial size shop vac to get the dead cockroaches out of it. They ended up with four or five large wheelbarrows full of dead cockroaches, flies, and other miscellaneous insects. They had to call in hazmat experts to clean the airplane up before they could let the technicians work inside it.

  4. “If a pilot tried to remove me from a flight for a bogus reason, I might even claim it was because he recognized me from that night… In 5-10 with some photo editing software on my tablet I could even produce suitably ambiguous “proof” of his face in the background of a bar party scene”
    I can say with certainty that from a law enforcement perspective if such a claim was made by a passenger about to be evicted from an aircraft, it would have zero credibility with those frog-marching him back to the gate, or during his subsequent arraignment.

  5. Jim22,

    Never called you an adolescent idiot; I just equated “judging a book by its cover” with adolescent idiocy.

    In other words, Cinderella, don’t complain about the glass slipper you went out of your way to put on.

  6. randy,
    Ol’ Dave has a great imagination, but little sense of the Law of Unintended Consequences.

    We both know folks like that. As they say in Texas, all hat and no cattle.

    And one more thing. That “suggestion” violates both local and Federal laws. Not only get to talk to the local constabulary, but the FBI as well. By the way Dave, despite your disclaimer, what you wrote can be classified as Stochastic Terrorism. Look it up. In cases of terroristic threats, lame disclaimers can be considered “weasel words.” You can look that up too.

    1. Thanks for that term OS since that is the first I have heard of it. It would seem to fall under the more prosaic term of inciting to riot, only using mass media. I wonder if any successful prosecutions have been made on that basis. It would seem to be a good point of law to be enacted or used in prosecution of cases where a direct link can be traced to specific targets of these hate mongers such as the Tides Foundation, or Dr. Tiller.

      I am sure it is and will be used on any members of Al Qeada who are caught. it is time to go after the terrorists on the right wing too who are doing the same as the Islamic terrorists.

    2. There is the case where they arrested the woman who demanded to see her pilot so she could see for herself that he was not drinking the night before. This was right after several pilots had been hauled off drunk.

  7. Jill, I agree that the government should behave better toward everyone (everyone is intended to be all inclusive), but it turns out that there have been court cases that affirm TSAs right to do what could result result in sexual assault charges if done elsewhere. TSA is just another example of double standards. There are those who go through General Aviation who have one set of rules (no TSA) and then the rest of us. There are a few less bury airports that don’t have the full set of abuses and if pushed to fly, I would go out of my way to travel from one of them.

    randyjet, I spent a few years as office manager for an air charter company so I’m aware of the advantages, and the costs, of chartering a flight. Since I usually travel alone or with a niece or nephew, chartering is out of the question. I’ll have to admit, though, that long distance driving requires shorter days and longer recovery times than it used to.

  8. I am NOT ADVOCATING THAT ANYBODY UNJUSTLY ACCUSE A PILOT OF ANYTHING – I am simply pointing out how easily it CAN be done, and done maliciously.

  9. It is no harder to have the pilot removed from the flight than a passenger. The plane does not belong to the pilot, it belong to the Airline and both it and the pilot fly it at the pleasure of the FAA. Simply make a phone call to the Airport’s FAA flight operations center and tell them that you recognize the pilot from your late night bar binge and saw him snorting cocaine in the bathroom.
    If a pilot tried to remove me from a flight for a bogus reason, I might even claim it was because he recognized me from that night… In 5-10 with some photo editing software on my tablet I could even produce suitably ambiguous “proof” of his face in the background of a bar party scene.
    A few days of suspension later, if he tested clean, my excuse would simply be “well, it sure looked like him – but then again, I had been drinking… Better safe than sorry”. Which, as it seems, was the exact same justification our Lord and King pilots are using when working gut feelings and racial profiling to equally disrupt the lives of those they toss off the airplanes they are paid to fly.
    In virtually every disruptive, or even wannabe terrorist incident since 9/11 it has not been DHS, the pilots or even the Air Marshals that have prevented the incident from escalating – it has been the PASSENGERS THEMSELVES, who collectively on 9/11 learned not to be sheep led to slaughter.
    It is extremely difficult for one or even a few men to control tens or hundreds who simply refuse to be controlled, who refuse to quietly go to meet their maker.
    9/11 as it happened will never happen again, not because of better screening, cockpit doors, armed pilots or anything else – it will never happen again because passengers simply will not let it. Imperial pilots or imperial presidents be damned.

    1. I see that wrxdave has a Napoleon complex. Try some of those stunts, and you will learn about perjury, making false accusations to law enforcement, and the penalties for that. Not to mention interfering with a flight crew member which will get you 20. Please be my guest.

      By the way, one pax did make an offhand comment about pilots drinking before the flight. The captain demanded a breath test for him and his crew. They were found to be clean, and the flight was rather delayed. The other passengers were NOT amused. I did not hear what they did to the jokester once he was outside the terminal. I think that they may have taken daves suggestion as to passenger preventative measures to heart.

  10. bettykath,

    What about people who cannot drive where they need to get? Should the answer be that everyone must drive or is the answer that the govt. must behave lawfully towards its citizens?

  11. randyjet, Your actions as PIC were appropriate and your description holds nothing that I would challenge.

    I no longer fly. As to commercial flights, the only stress would be with TSA and I refuse to deal with being hit by radiation or in being sexually assaulted by TSA. Driving works for me. I’ve been to every state in the country and have driven at one time or another to all but HI and AK where driving just didn’t work for me. TSA didn’t exist at the time I flew commercially.

    1. bettykath – if it were not for time constraints for my wife, I would be driving on this trip.

    2. bettykath, If you want you can avoid all those hassles by getting some people together and chartering a plane. It may cost a bit more, but it is not out of the price range of middle income folks. They charge by the hour which can run from $2000/hr to $5000/hr depending on the size. You will have no lines or TSA to deal with.

  12. randyjet, I did answer you question. I don’t think you like my answer.

    Looking at the govt. memorandum, which I linked to above, you can see that the DOJ itself understands that the president could be accused of murder and they aren’t able to find a way out of this for him (or eventually, for her).

    You are going along with the idea that the executive may act as judge, jury and executioner of an American citizen. That is not our Constitution and it is difficult for me to understand why any citizen supports this.

    Many believe this will never happen to them, only “bad people” (as defined by the govt., not law) but history shows otherwise. Even the most obsequious followers will be turned against if the govt. finds it advantageous to do so.

    I’m not giving up the rule of law!

    1. Jill you did not answer the question at all. You refuse to address specific elements. According to your reasoning then the GIs who shot and killed US citizens who were fighting for the Nazis were guilty of murder. We even put on trial US citizens during WWII by military court, and executed them. To refuse to examine the specific elements is simply dodging the question and to assert that as CiC, the President cannot authorize the use of lethal force against any American anywhere, any time is clearly absurd.

      The previous outright murders committed by Nixon, Truman. Reagan and others of US citizens is FAR different from those killings of those engaged or affiliated with armed forces engaged in combat against the US. The rule of law does not require that all use of deadly force be prohibited until they are indicted or a warrant issued for their arrest. Even the police do NOT have such constraints and they ARE authorized to KILL any person who is a threat to their or others lives WITHOUT trial or indictment. Such action does NOT contravene the rule of law. It is too bad you cannot see simple differences and want to lump all killings together. What they does is to ignore the difference between legitimate use of deadly force in self defense, manslaughter, or murder. They are NOT all the same as you would have it.

  13. I also would like to point out to 14 CFR 91.3 – Responsibility and authority of the pilot in command concerning a pilot’s authority.

    §91.3 Responsibility and authority of the pilot in command.
    (a) The pilot in command of an aircraft is directly responsible for, and is the final authority as to, the operation of that aircraft.

    (b) In an in-flight emergency requiring immediate action, the pilot in command may deviate from any rule of this part to the extent required to meet that emergency.

    (c) Each pilot in command who deviates from a rule under paragraph (b) of this section shall, upon the request of the Administrator, send a written report of that deviation to the Administrator.

    (Approved by the Office of Management and Budget under control number 2120-0005)

  14. I believe Randyjets comments with regard to the “free drinks” incident were taken out of context.

  15. As Randyjet mentions, the pilot of an aircraft has authority over the crew, attendants, and passengers of their aircraft. The pilot has a duty to investigate any report of suspicious activity alleged by a passenger. The suspicion may either be acted upon or dismissed based upon the captain’s discretion as regulated by various policies and laws.

    Moreover, there should be an open approach to passengers reporting what they perceive to be suspicious activity. If passengers are reluctant to come forward with their concerns it opens the door for something bad happening.

    In fact those reporting suspicious activity to authorities in general are provided wide immunity for doing so. Unless the reporting constitues a malicious prosecution it is nearly impossible to hold a person in jeopardy, and the courts are consistent in their protection of witnesses or reporting parties.

    Passengers are going to be more proactive on reporting suspcious activity on airlines given what has happened over the past twelve years. You will recall that passengers subdued Richard “Shoe Bomber” Reid before he could blow up an American Airlines flight. It is necessary considering that the crew cannot monitor everyone all the time.

    Additionally, one only has to look at what happens to problem individuals who cause incidents on aircraft in flight to see how seriously such matters are taken. If on the ground say for example in a transit bus, a disorderly person causes a bus to stop and local law enforcement is called, the individual will likely only be charged with misdemeanor crimes such as Disorderly Conduct and Unlawful Transit Conduct. If a person causes the same incident in-flight on a commercial aircraft they could be charged with the federal crime of 49 U.S. Code § 46504 – Interference with flight crew members and attendants; which is a felony punishable by up to 20 years imprisonment or if a weapon is used up to life. Passengers who cause a diversion of a flight can expect to be greeted by the FBI or US Marshals upon arrival. All of this begins with a pilots discretion.

  16. Randyjet, Where’s the love? I had multiple posts defending you against Max-1’s misinterpretation of your post.

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