Posted on: September 9, 2013
The right to fly
We know nothing about Judge Anna Brown of the U.S. District Court in Oregon, but we took an instant liking to her last week when we read her decision in a case involving 13 people who are trying to get themselves off the government's no-fly list.
This page is protected by Copyright laws. Do Not Copy. Purchase Reprint
Not all the questions in the case of Latif vs. Holder have been settled (Brown has called for further proceedings on some issues), but the judge firmly declared in an Aug. 30 ruling that by failing to give travelers adequate notice that they are on a watch list, and by failing to provide a meaningful opportunity for them to contest that placement, the government has interfered with their constitutional right to travel by air.
You read it right. She determined that there is a constitutional right to travel by air, at least in international markets where there are no feasible alternatives.
Many previous court decisions have affirmed a right to travel, but in defending its no-fly list the government has claimed that there is no right to travel by air or to access the most convenient form of travel.
But Brown didn't buy it, declaring that she "disagrees with [the government's] contention that international air travel is a mere convenience, in light of the realities of our modern world." She ruled that the plaintiffs "have a constitutionally protected liberty interest in traveling internationally by air, which is affected by being placed on the no-fly list."
It occurs to us that one immediate effect of this ruling could be to substantially raise the bar on the amount of due process that the government builds into the whole watch list program, which operates from the FBI's Terrorist Screening Center.
The statement of facts in Brown's ruling serves as a stark reminder that there is virtually no due process in the existing regime.
All 13 plaintiffs in the court case, including four who are veterans of the armed forces, were denied boarding here or abroad in 2009 or later. Not all of them were told why, but all of them sought relief through Homeland Security's Traveler Redress Inquiry Program (TRIP), which handles complaints about airport screening and related issues.
As the judge recounted it, travelers who seek redress through TRIP are not told whether or why they are on the no-fly list or the broader watch list. The plaintiffs claim that travelers are entitled to be notified if they are put on such a list, to be told the reason, and to be given a meaningful opportunity to contest their inclusion.
Those would seem to be reasonable expectations in the Land of the Free. But if the right to travel by air is constitutionally protected, they become more than reasonable. They become necessary.
The government claims that such procedures would entail the disclosure of classified information and compromise national security, and that the TRIP system is an adequate substitute because adverse TRIP determinations can be reviewed by appellate courts.
Brown is holding further proceedings on that question, because little is known about how these appeals work. No such appeal has ever been decided on the merits and only three are known to be pending in U.S. courts. It appears, however, that plaintiffs in those appeals don't get to see and contest the government's evidence -- the government provides it to the reviewing court under seal.
The plaintiffs don't think much of that procedure, and neither do we. We hope Judge Brown agrees.