6 ms·

This seems like the right decision to me. Being blocked from air travel is indeed a violation of liberty. I think the U.S. government has a right to keep a lis

This seems like the right decision to me. Being blocked from air travel is indeed a violation of liberty. I think the U.S. government has a right to keep a list of suspicious persons, watch and monitor them, block them from visiting the United States, but there should be a way to appeal your inclusion on that list especially if you are a U.S. legal resident or citizen. You can't just remain on that list forever, unable to travel, with no evidence or justifiable proof of criminal association with terrorists. That's limbo.

jevinskie 12y ago
Does this ruling imply some sort of "right to travel"?
- chadgeidel 12y ago
  I always assumed the right was implicit. (Potentially ignorant US citizen here)
  - deleted 12y ago
    [deleted]
  - jevinskie 12y ago
    Well it gets muddy when it isn't just walking around. For instance, most states require that you consent to a breathalyzer test or your license is revoked. Somehow the Fourth didn't apply in those cases.
- ISL 12y ago
  http://en.wikipedia.org/wiki/Freedom_of_movement_under_United_States_law http://en.wikipedia.org/wiki/Freedom_of_movement_under_Unite...
- deleted 12y ago
  [deleted]
- unreal37 12y ago
  From the article it seems like the judge has said that the right to freedom includes the ability to travel out of the country or across country. It's just not reasonable to require some segment of the population (500-20,000 people) to take a boat to go to Europe, with no trial or ability to appeal. Movement is restricted. It doesn't seem like a right on it's own, so much as included in the existing right to "liberty". My 2 cents.
- deleted 12y ago
  [deleted]
- recursive 12y ago
  It's not really implied by this. It's one of the rights guaranteed by the constitution.
  - the_watcher 12y ago
    >> It's one of the rights guaranteed by the constitution. Again, not trying to be pedantic, but this is another major point of contention in Constitutional law - how broad of a scope do each of the Constitutional named rights have? The 9th Amendment implies that it is extremely broad, as it explicitly reserves non-enumerated rights as falling under the Constitution. DISCLAIMER: just to head things off, I bring up Roe v. Wade not because of the topic of the case, but because the general opinion on the ruling's use of the 9th Amendment is pretty consistent (and there are numerous subsequent cases that deal almost solely with this). There are many who agree with the outcome but have major reservations with the potential repercussions of the legal reasoning. However, you can just look at the general consensus on Roe v. Wade to see that it's far from universally accepted that the 9th Amendment is that broad (that the crux of the opinion is very flawed, relying on a very strange and far reaching right of privacy derived from the 14th Amendment and 9th Amendment - neither of which mention privacy. To clarify - on both sides of the Roe v. Wade debate, most will admit the ruling was flawed, and when relying on it as precedent, nearly all judges will also refer to subsequent cases that address the problems with that ruling). So, the Constitution does not guarantee a right to travel (and the way this ruling is phrased suggests that an appeal would bring this as a concern, and in upholding the ruling, a higher court would almost certainly clarify this). A more likely argument (in terms of its strength in Constitutional law) is one that protects a right to travel as a part of the 1st Amendment right to free speech, expression, and assembly (so a negative right granting freedom from unlawful interference in travel by the government).
    - chris_wot 12y ago
      This case has nothing to do with freedom of speech, it's to do with the Fifth Amendment in the Bill of Rights. And it's not that the plaintiffs were deprived of liberty, it was that they were deprived of liberty without due process of law. To this the Court has found that there was no due process, therefore the no-fly list - as it stands now - violates the United States Constitution.
- the_watcher 12y ago
  The ruling does seem to imply that, however, on appeal, that will almost certainly be clarified. No judge would actually argue for a right to travel so broadly defined that it would essentially remove all regulatory power over who can and cannot fly. The ruling will likely be clarified for precedent to mean that the right to due process includes a right to quickly and effectively contest designations by government agencies in the absence of formal charges of violating a law. The right to travel, in the broad sense of "you have the right to move wherever you want to move so long as no laws are violated," is likely covered by an umbrella of the 1st Amendment right to free speech and expression, as well as the 9th Amendment, as a negative right: you are free from being prevented from travel by means not permissible by law or Constitutionally.
  - chris_wot 12y ago
    There's nothing implied. The Court flat out says that denial of international air travel is a deprivation of liberty.
    - the_watcher 12y ago
      Does anyone have a link to the actual decision? Upon rereading, the article certainly makes it seem as though the crux of the ruling was around a denial of international air travel is a deprivation of liberty, but were I the appealing attorney, that would be fantastic news. That's a major change in the permissiveness of the word liberty, and would open up infinite slippery slope arguments. I'd bet on that logic failing on appeal. However, if the decision relies on other grounds (either solely or in addition to), then I doubt it is overturned. While the Reuters article presents this as legally binding, if the quotes occurred in dicta (discussion of the facts and implications of the case that are not legally binding, as they are not grounded in case or black letter law), then it's not binding, and the ruling can be upheld without addressing the redefinition of liberty.
      - chris_wot 12y ago
        Find it here. Deprivation of liberty is not the whole issue, it was a problem with lack of due process, of which deprivation of liberty is but one part. https://www.aclu.org/sites/default/files/assets/latif_v_holder_opinion_and_order.pdf https://www.aclu.org/sites/default/files/assets/latif_v_hold... I summarised the case in this comment: https://news.ycombinator.com/item?id=7940334 https://news.ycombinator.com/item?id=7940334
- chris_wot 12y ago
  Yes. In the ruling, the Court "has concluded Plaintiffs have a constitutionally-protected liberty interest in the right to travel internationally by air". However, it goes further as they found that as per Mathews v. Eldridge, 424 U.S. 319, 333 (1979) the plaintiffs constitutional right to due process has been violated because: 1. not only do they have a right to travel internationally, being placed on the no-fly list stigmatises them as the government discloses the list to other parties (such as ship captains) and additionally deprives them of their liberty. 2. Notice is insufficient as there is inadequate information given to those on the no-fly list, because under government policy they neither confirm nor deny they are on the list. This leads to a catch-22 situation where you cannot appeal an erroneous decision as you cannot tell what that decision was. Interestingly, the court said they couldn't determine if there were issues with judicial review. There is a third test, which is to weight the government's interest against issues with disclosure, but this couldn't be determined by the Court. The ruling is quite readable, btw. It can be found here: https://www.aclu.org/sites/default/files/assets/latif_v_holder_opinion_and_order.pdf https://www.aclu.org/sites/default/files/assets/latif_v_hold...
  - the_watcher 12y ago
    This looks accurate. In this case, it looks like the court relied both on precedent, the Constitution, and finding a new right. For purposes of appeal, my guess is the decision is upheld, while declining to accept the first justification of the ruling. The second point the decision relies upon is a pretty strong one, in my opinion.
drzaiusapelord 12y ago
The funny thing is we just had this trial in 2010 and lost. I suspect 9/11 hysteria is dying down, so now we can have real adult conversations about things like this. Not to mention ending or deeply cutting the drug war. Or our constant talk of FISA, NSA, etc powers. I really think the conversation that would have been unthinkable in 2001-2005 is finally happening. Sadly, social progress happens one funeral and a time and as the older generations die off, we'll move towards shifting the pendulum back to sanity. Heck, we may even see Bush and Cheney arrested for war crimes someday. Perhaps I'm too much of an optimist, but living in constant fear and endlessly burning up our dollars fighting terrorism is just not an option, especially when we compete on a global scale with nations with 1/20th our military spending, higher standards of living, and rising economies.
- cheald 12y ago
  I don't think it's just "9/11 hysteria dying down" - post-Snowden, people are a lot more willing to accept that our government is abusive towards its own people, and thus it's harder to just wave off questions of the no-fly list with "well they're just doing what's good for us".
- deleted 12y ago
  [deleted]
the_watcher 12y ago
>> Being blocked from air travel is indeed a violation of liberty. Very much depends on how permissive your definition of liberty is. Not trying to be pedantic, this is actually a pretty big issue in constitutional law. It does seem to be a violation of due process, at the very least. An aggressive attorney may even allege a violation of the Equal Protection Clause in skirting the rebuttal of "there is a way to challenge it by appealing directly to the court," as well as the cases where citizens only discovered their inclusion by arriving at the airport. This is a pretty important case in terms of defining the scope of federal agency's power (can agencies create regulations that burden various classes of people differently without providing notice or a way to contest your inclusion simply?) that could ripple out to non-law enforcement and homeland security agencies.
- the_watcher 12y ago
  A follow up on due process, from Wikipedia: notified of the accusations, to confront the accuser, to obtain witnesses and to retain counsel. While Wikipedia is not case law, having done a year in law school, I can attest that those pages are some of the most accurate out there. Definitely seems as though the notice requirement, in particular, is not being met by the government, as the punishment (not being able to fly) is being discovered prior to the accused even having the limited options presented to them. There's also good arguments that their right to counsel and trial by jury is being violated (although there are some larger loopholes for avoiding those - namely that trial by jury and some other 6th Amendment protections only being available in criminal trials, which I assume the government would dispute, having never formally filed charges, as well as the hazy catch-all the US has learned to use - classifying those who it wants to treat as criminals without having to obey constitutional and legal standards as enemy combatants. I doubt they would resort to this, however, as it would be inevitable that someone misclassified would get some media traction, and potentially force a judicial ruling on enemy combatant status, which is not in US interests).
- zenciadam 12y ago
  Freedom of movement is a human right. There is no real way to equivocate that without arguing in favour of a police state.
- 12y ago
chris_wot 12y ago
Actually, being blocked from international air travel is considered to be a deprivation of liberty.
- deleted 12y ago
  [deleted]
shawn-butler 12y ago
This will probably not survive review. The Department of State has always reserved the right to revoke/deny passports for all sorts of reasons that are not subject to administrative review. Don't pay your taxes, no passport. Don't pay your child support, no passport. There have even been cases where passports have been revoked for people who have been remanded to mental institutions. Having had your passport revoked in the past is enough grounds to deny you getting one in the future all of which has passed muster at Supreme Court given State Dept acts with seeming explicit Congressional approval. [0] You can in principle negotiate with the destination country for a visa and fly non-commercially. Can Google "Gilbert Chagoury" for example. He is wealthy patron of Bill Clinton from Nigeria who has been on No-Fly status for years but still jets around the US and internationally I believe on an UK passport on small planes. Not saying it is just but that will probably be the legal basis. This opinion is only a finding of due process. That DHS TRIP is not adequate. DHS will simply remedy that if it comes to it with some just as difficult process as it is getting a passport unrevoked by the State Dept (which is nearly impossible without political favor). [0]: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=453&invol=280 http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vo...
- smsm42 12y ago
  What no-fly list has to do with passports? There are many people routinely flying in the US who don't have and never had US passports. E.g. all tourists, resident aliens, etc.
- dandelany 12y ago
  We're not talking about passports, we're talking about air travel. As it stands today (correct me if I'm wrong), a US citizen could be on the no-fly list and be denied the right to board a flight from New York to California. Passports don't even enter into it in this case.

jevinskie 12y ago

Does this ruling imply some sort of "right to travel"?

chadgeidel 12y ago
I always assumed the right was implicit. (Potentially ignorant US citizen here)
- deleted 12y ago
  [deleted]
- jevinskie 12y ago
  Well it gets muddy when it isn't just walking around. For instance, most states require that you consent to a breathalyzer test or your license is revoked. Somehow the Fourth didn't apply in those cases.
ISL 12y ago
http://en.wikipedia.org/wiki/Freedom_of_movement_under_United_States_law http://en.wikipedia.org/wiki/Freedom_of_movement_under_Unite...
deleted 12y ago
[deleted]
unreal37 12y ago
From the article it seems like the judge has said that the right to freedom includes the ability to travel out of the country or across country. It's just not reasonable to require some segment of the population (500-20,000 people) to take a boat to go to Europe, with no trial or ability to appeal. Movement is restricted. It doesn't seem like a right on it's own, so much as included in the existing right to "liberty". My 2 cents.
deleted 12y ago
[deleted]
recursive 12y ago
It's not really implied by this. It's one of the rights guaranteed by the constitution.
- the_watcher 12y ago
  >> It's one of the rights guaranteed by the constitution. Again, not trying to be pedantic, but this is another major point of contention in Constitutional law - how broad of a scope do each of the Constitutional named rights have? The 9th Amendment implies that it is extremely broad, as it explicitly reserves non-enumerated rights as falling under the Constitution. DISCLAIMER: just to head things off, I bring up Roe v. Wade not because of the topic of the case, but because the general opinion on the ruling's use of the 9th Amendment is pretty consistent (and there are numerous subsequent cases that deal almost solely with this). There are many who agree with the outcome but have major reservations with the potential repercussions of the legal reasoning. However, you can just look at the general consensus on Roe v. Wade to see that it's far from universally accepted that the 9th Amendment is that broad (that the crux of the opinion is very flawed, relying on a very strange and far reaching right of privacy derived from the 14th Amendment and 9th Amendment - neither of which mention privacy. To clarify - on both sides of the Roe v. Wade debate, most will admit the ruling was flawed, and when relying on it as precedent, nearly all judges will also refer to subsequent cases that address the problems with that ruling). So, the Constitution does not guarantee a right to travel (and the way this ruling is phrased suggests that an appeal would bring this as a concern, and in upholding the ruling, a higher court would almost certainly clarify this). A more likely argument (in terms of its strength in Constitutional law) is one that protects a right to travel as a part of the 1st Amendment right to free speech, expression, and assembly (so a negative right granting freedom from unlawful interference in travel by the government).
  - chris_wot 12y ago
    This case has nothing to do with freedom of speech, it's to do with the Fifth Amendment in the Bill of Rights. And it's not that the plaintiffs were deprived of liberty, it was that they were deprived of liberty without due process of law. To this the Court has found that there was no due process, therefore the no-fly list - as it stands now - violates the United States Constitution.
the_watcher 12y ago
The ruling does seem to imply that, however, on appeal, that will almost certainly be clarified. No judge would actually argue for a right to travel so broadly defined that it would essentially remove all regulatory power over who can and cannot fly. The ruling will likely be clarified for precedent to mean that the right to due process includes a right to quickly and effectively contest designations by government agencies in the absence of formal charges of violating a law. The right to travel, in the broad sense of "you have the right to move wherever you want to move so long as no laws are violated," is likely covered by an umbrella of the 1st Amendment right to free speech and expression, as well as the 9th Amendment, as a negative right: you are free from being prevented from travel by means not permissible by law or Constitutionally.
- chris_wot 12y ago
  There's nothing implied. The Court flat out says that denial of international air travel is a deprivation of liberty.
  - the_watcher 12y ago
    Does anyone have a link to the actual decision? Upon rereading, the article certainly makes it seem as though the crux of the ruling was around a denial of international air travel is a deprivation of liberty, but were I the appealing attorney, that would be fantastic news. That's a major change in the permissiveness of the word liberty, and would open up infinite slippery slope arguments. I'd bet on that logic failing on appeal. However, if the decision relies on other grounds (either solely or in addition to), then I doubt it is overturned. While the Reuters article presents this as legally binding, if the quotes occurred in dicta (discussion of the facts and implications of the case that are not legally binding, as they are not grounded in case or black letter law), then it's not binding, and the ruling can be upheld without addressing the redefinition of liberty.
    - chris_wot 12y ago
      Find it here. Deprivation of liberty is not the whole issue, it was a problem with lack of due process, of which deprivation of liberty is but one part. https://www.aclu.org/sites/default/files/assets/latif_v_holder_opinion_and_order.pdf https://www.aclu.org/sites/default/files/assets/latif_v_hold... I summarised the case in this comment: https://news.ycombinator.com/item?id=7940334 https://news.ycombinator.com/item?id=7940334
chris_wot 12y ago
Yes. In the ruling, the Court "has concluded Plaintiffs have a constitutionally-protected liberty interest in the right to travel internationally by air". However, it goes further as they found that as per Mathews v. Eldridge, 424 U.S. 319, 333 (1979) the plaintiffs constitutional right to due process has been violated because: 1. not only do they have a right to travel internationally, being placed on the no-fly list stigmatises them as the government discloses the list to other parties (such as ship captains) and additionally deprives them of their liberty. 2. Notice is insufficient as there is inadequate information given to those on the no-fly list, because under government policy they neither confirm nor deny they are on the list. This leads to a catch-22 situation where you cannot appeal an erroneous decision as you cannot tell what that decision was. Interestingly, the court said they couldn't determine if there were issues with judicial review. There is a third test, which is to weight the government's interest against issues with disclosure, but this couldn't be determined by the Court. The ruling is quite readable, btw. It can be found here: https://www.aclu.org/sites/default/files/assets/latif_v_holder_opinion_and_order.pdf https://www.aclu.org/sites/default/files/assets/latif_v_hold...
- the_watcher 12y ago
  This looks accurate. In this case, it looks like the court relied both on precedent, the Constitution, and finding a new right. For purposes of appeal, my guess is the decision is upheld, while declining to accept the first justification of the ruling. The second point the decision relies upon is a pretty strong one, in my opinion.

drzaiusapelord 12y ago

The funny thing is we just had this trial in 2010 and lost. I suspect 9/11 hysteria is dying down, so now we can have real adult conversations about things like this. Not to mention ending or deeply cutting the drug war. Or our constant talk of FISA, NSA, etc powers. I really think the conversation that would have been unthinkable in 2001-2005 is finally happening. Sadly, social progress happens one funeral and a time and as the older generations die off, we'll move towards shifting the pendulum back to sanity. Heck, we may even see Bush and Cheney arrested for war crimes someday. Perhaps I'm too much of an optimist, but living in constant fear and endlessly burning up our dollars fighting terrorism is just not an option, especially when we compete on a global scale with nations with 1/20th our military spending, higher standards of living, and rising economies.

cheald 12y ago
I don't think it's just "9/11 hysteria dying down" - post-Snowden, people are a lot more willing to accept that our government is abusive towards its own people, and thus it's harder to just wave off questions of the no-fly list with "well they're just doing what's good for us".
deleted 12y ago
[deleted]

the_watcher 12y ago

>> Being blocked from air travel is indeed a violation of liberty. Very much depends on how permissive your definition of liberty is. Not trying to be pedantic, this is actually a pretty big issue in constitutional law. It does seem to be a violation of due process, at the very least. An aggressive attorney may even allege a violation of the Equal Protection Clause in skirting the rebuttal of "there is a way to challenge it by appealing directly to the court," as well as the cases where citizens only discovered their inclusion by arriving at the airport. This is a pretty important case in terms of defining the scope of federal agency's power (can agencies create regulations that burden various classes of people differently without providing notice or a way to contest your inclusion simply?) that could ripple out to non-law enforcement and homeland security agencies.

the_watcher 12y ago
A follow up on due process, from Wikipedia: notified of the accusations, to confront the accuser, to obtain witnesses and to retain counsel. While Wikipedia is not case law, having done a year in law school, I can attest that those pages are some of the most accurate out there. Definitely seems as though the notice requirement, in particular, is not being met by the government, as the punishment (not being able to fly) is being discovered prior to the accused even having the limited options presented to them. There's also good arguments that their right to counsel and trial by jury is being violated (although there are some larger loopholes for avoiding those - namely that trial by jury and some other 6th Amendment protections only being available in criminal trials, which I assume the government would dispute, having never formally filed charges, as well as the hazy catch-all the US has learned to use - classifying those who it wants to treat as criminals without having to obey constitutional and legal standards as enemy combatants. I doubt they would resort to this, however, as it would be inevitable that someone misclassified would get some media traction, and potentially force a judicial ruling on enemy combatant status, which is not in US interests).
zenciadam 12y ago
Freedom of movement is a human right. There is no real way to equivocate that without arguing in favour of a police state.
12y ago

chris_wot 12y ago

Actually, being blocked from international air travel is considered to be a deprivation of liberty.

deleted 12y ago
[deleted]

shawn-butler 12y ago

This will probably not survive review. The Department of State has always reserved the right to revoke/deny passports for all sorts of reasons that are not subject to administrative review. Don't pay your taxes, no passport. Don't pay your child support, no passport. There have even been cases where passports have been revoked for people who have been remanded to mental institutions. Having had your passport revoked in the past is enough grounds to deny you getting one in the future all of which has passed muster at Supreme Court given State Dept acts with seeming explicit Congressional approval. [0] You can in principle negotiate with the destination country for a visa and fly non-commercially. Can Google "Gilbert Chagoury" for example. He is wealthy patron of Bill Clinton from Nigeria who has been on No-Fly status for years but still jets around the US and internationally I believe on an UK passport on small planes. Not saying it is just but that will probably be the legal basis. This opinion is only a finding of due process. That DHS TRIP is not adequate. DHS will simply remedy that if it comes to it with some just as difficult process as it is getting a passport unrevoked by the State Dept (which is nearly impossible without political favor). [0]: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=453&invol=280 http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vo...

smsm42 12y ago
What no-fly list has to do with passports? There are many people routinely flying in the US who don't have and never had US passports. E.g. all tourists, resident aliens, etc.
dandelany 12y ago
We're not talking about passports, we're talking about air travel. As it stands today (correct me if I'm wrong), a US citizen could be on the no-fly list and be denied the right to board a flight from New York to California. Passports don't even enter into it in this case.