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Lawsuit challenges USA "No-Fly" list



 
 
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Old April 7th, 2004, 03:30 AM
Edward Hasbrouck
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Default Lawsuit challenges USA "No-Fly" list

CLASS-ACTION LAWSUIT CHALLENGES USA NO-FLY LIST

for links to ducuments and references, see:
http://hasbrouck.org/blog/archives/000188.html

The American Civil Liberties Union today filed a Federal class action
lawsuit seeking a declaratory judgement against the USA
Transportation Security Administration (TSA) and the USA Department
of Homeland Security (DHS) that their "maintenance, management, and
dissemination of the No-Fly List are unconstitutional under the Fifth
and Fourth Amendments" to the Constitution of the USA.

Oddly, the lawsuit doen't raise the question of the
constiitutionality of the No-Fly List under the clause of the First
Amendment protecting "the right of the people... peacably to
assemble". Given that "to travel" is, in most cases, "to assemble" --
the majority of journeys by air are acts of assembly with business
associates, fellow participants in business and organizations
meetings and conventions, and/or friends and relatives -- such acts
of travel are acts of assembly directly protected under the assembly
clause of the First Amendment.

Today's complaint was filed in Federal District Court in Seattle, WA,
on behalf of seven named plaintiffs (click on the thumbnail photos
for statements by each of the named plaintiffs) including a member of
the USA military on active duty, a retired Presbyterian minister, and
staff members of both the ACLU itself and the American Friends
Service Committee (a pacifist organization which previously received
the Nobel Peace Prize). The lawsuit seeks certification as a class
action on behalf of "all those who have been or will be subject to
interrogations, delays, enhanced searches, and/or detentions as a
result of having a name identical or similar to one on the Non-Fly
List." The named plaintiffs include a "David Nelson" (one of many who
have reportedly suffered as a result of the inclusion of that name on
the No-Fly List) and a "Mohamed Ibrahim" (a name probably more common
in the world than "John Smith").

The inclusion of an active-duty member of the military in those
singled out for detention and more intrusive search under the
government's own No-Fly List procedures raises particularly
disturbing questions about the ability of the military itself, and
the government in general, to tell "friend" from "foe" in cases where
the consequences of misidentification might be more severe, even
deadly, such as "friendly fire".

In November 2003, in response to an ACLU lawsuit under the Freedom of
Information Act, the FBI and the TSA released 94 pages of heavily
expurgated documents concerning the "No-Fly" and "permanent selectee"
[for secondary security screening] lists. But as the ACLU analysis of
the documents points out, all they really show is that the government
still has no coherent process for creating, maintaining, or
administering the lists.

The Electronic Privacy Information Center (EPIC) has also sued the
TSA under the FOIA for information about the No-Fly List. But today's
action is the first legal challenge to the list itself.

Since the government hasn't revealed how names are placed on the
No-Fly List, there's no way to know whether any of the names on the
list correspond to those of people who are genuinely so dangerous
that they shouldn't be allowed to travel on common carriers. As
common carriers, airlines are legally obligated to accept all
passengers paying the published tariff and complying with their
conditions of carriage as filed with the government.

But there are legal procedures, already in existence, for dealing
with people known to be violent, dangerous, and likely to carry out
attacks in particular public places.

Tens of thousands of times each year in the USA, victims of stalking
and domestic violence go to court, present evidence, and obtain
injunctions against those shown to be sufficiently dangerous (to the
court's satisfaction, after an adversary evidenciary hearing)
forbidding them from being present or travelling, even on public
rights-of-way, within a certain distance of the complainants or their
homes or workplaces.

Once such a restraining order is issued by a judge, there are
established legal standards as to the level of particularized
suspicion and evidence required before someone suspected of being in
such a place in violation of a court's restraining order can be
detaineed, questioned, or forced to produce evidence of their
identity. The circumstances in which identification or evidence of
identity can be demanded in a public place is currently before the
USA Supreme Court in Hiibel v. Nevada, in which the police claimed
that their demand that Hiibel identify himself was in response to a
report of possible domestic violence.

More people are killed each year in the USA by stalkers and domestic
abusers subject to protective injunctions by their victims than were
killed by airline terrorists in 2001. That's an ongoing problem that
calls for creative responses by all of us. But the presence in public
places, on public rights of way, and on common carriers of people
believed to pose a danger to others is not new, and does not call for
new, extra-judicial, and unconstitutional measures such as the No-Fly
List.

The TSA claims that only a few thousand names are on the No-Fly and
permanent selectee lists, so the task of presenting those names, and
the evidence against them, to courts and obtaining injunctions
against them -- on the basis of particularized suspicion, judicial
determinations, and adversary evidenciary hearings -- would be much
simpler, easier, and less costly than the current cost of legal
proceedings for restraining orders in stalking cases. It would also
be much less costly that the billion dollars or more that it would
cost to build the CAPPS-II airline passenger profiling system.

More important, use of established legal standards and procedures for
obtaining and enforcing court orders restraining people's presence in
airport terminals and gate areas, or travel by common-carrier
airlines, would greatly reduce the infringement on our right to
travel and our First Amendment right to assemble.

(The ACLU has added a form to their Web site for people who may have
been selected for secondary screening or other disparate treatment on
the basis of the No-Fly List or "selectee" list, and who may be part
of the class of people affected by the class action lawsuit, to
report their experience. This supplements the ACLU's ongoing
collection through a separate form of reports of racial profiling and
discriminatory treatment in air travel. The ACLU has also set up a
Web form to send a fax or e-mail message to the largest USA-based
airlines asking them not to participate in passenger profiling either
through the No-Fly and selectee lists or through CAPPS-II.)

----------------
Edward Hasbrouck

http://hasbrouck.org

"The Practical Nomad: How to Travel Around the World"
(3rd edition, February 2004, now in bookstores)
"The Practical Nomad Guide to the Online Travel Marketplace"
http://www.practicalnomad.com
 




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