No-fly list appeals process unconstitutional, federal judge in Portland rules

Oregon Live ^ | 06/24/2014 | Helen Jung

[GIdget2004]

People who are placed on the government's no-fly list are denied their constitutional right to due process, because the government's procedures to challenge inclusion on the secretive roster are "wholly ineffective," a federal judge ruled.

In a 65-page opinion issued Tuesday, U.S. District Judge Anna Brown ordered the government to come up with a new way for the 13 plaintiffs to contest their inclusion on the list that prohibits them from flying in or through U.S. airspace. The government must provide notice to the plaintiffs that they are on the roster and give the reasons for their inclusion, Brown wrote. She also ordered that the government allow the plaintiffs to submit evidence to refute the government's suspicions.

The decision marks a big win for the plaintiffs, all U.S. citizens or permanent residents, and the American Civil Liberties Union, which argued the case on their behalf. The plaintiffs have all been denied boarding due to their placement on the list, they argue, despite never having been charged with a terrorism-related offense.

The plaintiffs include Sheikh Mohamed Kariye, the religious leader of Portland's largest mosque, Masjed As-Saber. Kariye was refused boarding in 2010 and has been unable to travel overseas to visit his daughter or accompany his mother on a religious pilgrimage since.

[Boogieman]

“The no fly list does not impose any fines on anyone, nor does it put anyone in prison.”

So, as long as there are no criminal or civil penalties, we don’t have to worry whether the law is just or not?

For example, say we make a law that allows a secret tribunal to hear evidence, with the accused not present, not informed of the charges, and not able to present their own evidence or to cross-examine witnesses. This court won’t be able to send you to jail, or charge you any fines, but if it finds you guilty, we can prevent you from owning a firearm. Oh, and there will be no appealing the decisions of the tribunal. Would that be “due process” to you?

[Buckeye McFrog]

If they really have terrorist affiliations I suspect the due process would bear this out and they’d remain on the list.

[Jack Black]

discostu wrote: Lots of places supposed have terrorist cells,

True. And Portland had an ACTUAL a terrorist cell, not a "supposed" one. The accused terrorists were tried and convicted, except one who got away, joined Al Qaeda and died in Pakistan fighting the jihad.

And where did the actual terrorists become terrorists?

The most infamous of the Portland Seven was Mike Hawash, who was a VP of some sort at Intel. Here's a little background about his path to Jihad:

He grew a beard and covered his head with a prayer cap. He asked those who had known him for years as Mike to, please, call him Maher. He paid off the mortgage on his house, because Islam forbids paying interest on loans. And he became a regular attendee at Masjed as-Saberthe, the Islamic Center of Portland, a more fundamentalist place of worship than the Bilal Mosque, which he previously attended and which was closer to his home.[3]

So, it seems reasonable that the head of this Mosque is someone we would be very cautious about.

you continue: which doesn’t mean the no fly list works

Taken as a group the security measures put into place for air travel post 9/11, which includes the no-fly lists, seem to have done the job. There have been no hijackings oa Ameican planes since then.

you continue: or is just.

Possibly so. It's not prejudice that landed the Imam on the list, though. One might think it a reasonable precaution given that we are still at war with Islam, and this fellow looks to be a radical Islamic type.

[proxy_user]

I don’t think genuine terrorists would bring an appeal.

[discostu]

Which again does NOT mean the no fly list accomplishes anything.

Taken as a group there’s no proof those security measures have accomplished anything other than inconvenience a lot of people and shred the Bill of Rights. What stops terrorists is hard work by the cops, and sometimes luck. Treating the basic citizen as a criminal solves nothing.

I didn’t say anything about prejudice. The problem with the no fly list is that it’s functionally random. As someone else pointed out up thread, Ted Kennedy landed on the list. Anybody that buys a lot of one way tickets can land on the list.

The no fly list is quite simply police state presumption of guilt, it is at least as evil as any terrorist. It s vile, and people who support it are part of the problem, you’re surrendering MY freedom for your ILLUSION of safety.

[Repeal The 17th]

What I think...

IF: A government agency puts me on “a list” that restricts my freedom,
whether that be to air travel, or to gun ownership, or whatever.

THEN: They should be required to notify me and tell me “why”.

AND: I should have the opportunity to challenge their decision.

[Jack Black]

I agree. That seems fair.

[Gabz]

As a general rule, I’m always going to side AGAINST muzzies, the ACLU and liberal judges.

So do I, but my issue is that if they are US citizens there are constitutional issues being violated here.

[Gabz]

The no fly list does not impose any fines on anyone, nor does it put anyone in prison.

Yet it restricts their movements.

A law must be clear, fair, and have a presumption of innocence to comply with procedural due process.

And it seems to me, this "law" does not meet all of those standards.

However, if people engaged in certain activities are deemed too dangerous to allow on planes, and that rule is applied evenly, then it meets due process.

And that is the standard this "law" does not seem to meet.

It should not require a court order to prevent someone from getting on a plane.

True, but it should also not take a court order for the government to provide their probable cause for such prevention.

[Gabz]

The opinion is correct, there should be a reasonable process to appeal, but the base concept, that the federal government should maintain or even be able to give permission for citizens to fly is in error.

That is my position.

[Jack Black]

Taken as a group there’s no proof those security measures have accomplished anything other than inconvenience a lot of people and shred the Bill of Rights. What stops terrorists is hard work by the cops, and sometimes luck. Treating the basic citizen as a criminal solves nothing.

Ipso facto proof. We had hijackings occur, we put in place heightened airline security and no fly lists, and we haven't had hijackings since.

If you look at the 39 foiled terrorist plots listed here a few things seem to show up in common:

• Islam remains the common ideology of most terrorists active today
• Islamic Spiritual leaders are also sometimes Jihad leaders.
• nearly all the terrorists are immigrants from Islamic countires.
• Almost all have connections with other terrorists
• Many travel overseas to facilitate terrorism

Meeting all these criteria seems to permit some extra attention gets paid to people.

I agree with the poster below that if you are going to have rights revoked the Gov. should be requried to tell you, tell you why, and let you appeal

But I don't agree that the same standards used in criminal trails can or should be used in dealing with terrorists, especially foreign born terrorists. It's to our eternal discredit that we have allowed all these people in to start with, and that we appear unable to kick them out now.

But to also handicap ourselves and say that we can't take any preventative steps around a imam with known terrorist associates, running a mosque that has radicalized it's members, who have left to go on jihad.... WELL the Constitution isn't a suicide pact.

I think the judge has made a reasonable decision. Citizen rights don't disappear because of war, but they can be limited. Rights of appeal are the ones least likely to be given up, as they are the last resort.

As the Wikipedia article on Kennedy_v._Mendoza-Martinez, a war time case, explains the court's decision

In other words, the court acknowledged the expanded powers of Congress during wartime, but also ruled that those wartime powers do not permit Congress to circumvent the measures of due process.[4]

[zeugma]

I disagree, if they are U.S. citizens, as apparently most are, they are entitled to due process and it appears they have not been. On its face, I see nothing wrong with this ruling and everything right. Please correct me if I am wrong.

Better watch it citizen unit. Your unquestioning faith in the all-powerful state is suspect. Continued use of logic and reason will see you committed to the nearest camp.

[zeugma]

Ipso facto proof. We had hijackings occur, we put in place heightened airline security and no fly lists, and we haven't had hijackings since.

That's a ridiculous argument. The reason we haven't had hijackings since 9/11/01 is that the rules of the game changed on that day. On 9/10/01, it was assumed that a hijacker on board meant a detour to Havana or some other communist hell hole, then a continuation of your flight. After 9/11/01, we knew that a hijacker means the plane has been converted into a weapon of mass destruction. The ad-hoc militia that formed on the plane over Pennsylvania showed how Americans will react to future hijackers.

Full-auto weapons will not allow muslim scum to hijack a plane today. The only thing that was really necessary in the wake of 9/11 was that the pilot cabin be reinforced, and that the entire flight crew be armed. If we actually lived in a free country, the passengers would be armed as well.

The police state only makes things better for the police, not those who suffer under its rule.

[discostu]

Ipso facto isn’t proof, we went a long time before 9-11 without any hijackings, decades. So there’s no proof that whatever prevented the hijackings before then isn’t exactly what’s preventing them now. To prove these measures work you need ACTUAL hijackers ACTUALLY stopped by THESE RULES. Something that nobody is willing to stand up and say actually happened.

Those aren’t criteria that get you on the no fly list. Those criteria might get you on the terrorist watch list, but the no fly list seems to be basically random. Kennedy had issues because “T Kennedy” wound up on the list, “t kennedy who?” you might ask, just “T Kennedy” could be anybody, including apparently Edward Kennedy. That’s part of the problem with the list, it’s just names, not even full names, nobody knows why those names, nothing to distinguish them from other people with similar names, it’s seemingly random.

You continue to function under the lie from the government that people on the no fly list are terrorists. They ARE NOT, even if the original name put on the list was a terrorist they stop EVERYBODY with a similar name, look at this list of “controversial” people on the no fly list:
http://en.wikipedia.org/wiki/No_Fly_List#False_positives_and_other_controversial_cases
these aren’t terrorists. These are senators, congressmen, kids, veterans, actors, people who visited the “wrong” country.

This isn’t a war though. Not anymore if it ever really was. Where’s the front? Who’s the enemy? What are the victory conditions? Who do we eventually negotiate the peace with? In a war you can answer those questions quickly and succinctly. The war on terror is much like the war on drugs, it’s a made up war that can never be won and exists solely to shred the Bill of Rights. Don’t let fear turn you into a moron, stop excuse mongering the destruction of your rights. The government is lying to you about these lists, how they’re made, how they work, and if they accomplish anything. The lists are junk, the don’t stop anything except freedom.

[Jack Black]

Well I certainly would agree that if random people are on the list that's a problem. That doesn't seem to be what the law suit was about. The lead plaintiff might not be a terrorist, but he is probably on a terrorist watch list for good reason.

I would say there is a huge difference between the War on Drugs and the War on Terror. That being that terrorists have attacked the USA continually both here and abroad (embassy bombings, etc.) for more than two decades. 3000 people dying on 9/11 was a very war-like outcome.

If it's not a war, what do you suggest? We handle each terrorist attack as a police case? I think that's what Holder and Obama suggested we do with the Gitmo detainees, before they decided to pardon them in the faux prisoner exchange.

[discostu]

This isn’t the terrorist watch list, this is the no fly list. They were implemented at the same time and excused by the same act, but other than that they have no relation to each other. Administered by different groups, people on one aren’t necessarily on the other. He might be on the terror watch list too, but that would just be an accident.

Really drug cartels kill a lot more people a lot more regularly in this country. Admittedly they mostly kill members of rival cartels, but they’re still doing a lot more killing of Americans than any terrorist group.

The problem is it’s a war against a noun that isn’t proper. Subsequently it has no definition. Wars should only ever be against proper nouns, because then the scope is defined. When we entered a war against Germany, Japan and Italy (The Axis) the scope was defined, we knew who the enemy was, where they were, what a victory would be, what a defeat would be. Same with the Korean War, Viet Nam War, even the invasions of Grenada and Panama. Terror never attacked us, there is no definable group that is terror. A terrorist organization attacked us, THAT is who we should have declared war against, the proper noun of Al-Qaeda. A definable war with declarable victory conditions. It’s instructive to how pointless and meandering a “war” this is that “mission accomplished” was declared over a decade ago and nobody has any idea, or has had any idea during that time, if we’re actually anywhere near winning the “war”. I mean sure we beat Al-Qaeda, but there’s still plenty of terror out there.

And, to bring it all back, that’s why we should be wholly unwilling to let our freedoms be impacted in this “war”. Without an end in sight it’s these infractions are permanent. Limiting certain freedoms while we were at war with Germany there was a definable point when those freedoms would be restored, because we would all know when the war was over. There is no victory point in the war on terror, there is no time to know the mission really has been accomplished and we can get our freedoms back. That’s unacceptable.