A Federal Judge in Portland Oregon ruled yesterday that air travel is not a “mere convenience” as the government maintains, but a constitutional right that cannot be taken away without due process. The decision puts in jeopardy the use of the current ‘No Fly’ list because the government does not even inform citizens their names are being added, much less give them an opportunity to contest their inclusion. Judge Anna J. Brown ruled:
“Although there are perhaps viable alternatives to flying for domestic travel within the continental United States such as traveling by car or train, the Court disagrees with Defendants’ contention that international air travel is a mere convenience in light of the realities of our modern world. Such an argument ignores the numerous reasons an individual may have for wanting or needing to travel overseas quickly such as for the birth of a child, the death of a loved one, a business opportunity, or a religious obligation… the Court concludes on this record that Plaintiffs have a constitutionally-protected liberty interest in traveling internationally by air, which is affected by being placed on the list.”
The lawsuit was brought by the ACLU on behalf of thirteen people, including four former servicemen, whose names appear on the government’s No Fly List, though they say they have no idea why. News of the favorable decision was posted on the ACLU website last evening.
The ACLU argued the No Fly List violates the Fifth Amendment, which guarantees that a citizen cannot be deprived of liberty without due process. They further argued that no one is ever informed that they are on the list; the only way to know for sure is to buy a ticket and see if screeners allow you on a plane. They also contend that the government will not tell people on the list why they have been included, nor is there any reliable procedure to be taken off the No Fly List. Judge Brown agreed.
Nusrat Choudhury, one of the ALCU attorneys who argued the case released this statement after the ruling was announced:
“For the first time, a federal court has recognized that when the government bans Americans from flying and smears them as suspected terrorists, it deprives them of constitutionally protected liberties, and they must have a fair process to clear their names. The No Fly List procedures violate due process because the government refuses to provide any explanation or a hearing for innocent Americans to challenge their inclusion, and we look forward to making that case to the court.”
Although the plaintiffs have scored a victory with the ruling that all citizens have a right to air travel, what to do about the current No Fly List has not yet been decided. Judge Brown ordered the parties to submit more information on the government process for a citizen to contest the inclusion of his name, before she decides whether the current policy violates due process.
The ACLU says more than 20,000 people are on the current No Fly List.
Photo from O’Hare Airport Facebook
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