I expect the government to appeal, but what are the implications if this decision holds?
The judge says that the government has to notify persons who are on the no-fly list, give the reasons for them being on the list, and to give them an opportunity to refute those reasons. The story doesn’t go into details about how the challenge process would work, or who would have final decision authority.
I am generally on the side of liberty vs. safety, so I think this is a good thing. Up to this point the no-fly list has been just a convenient bludgeon to use on people the government (or individual people with enough power) don’t like or are afraid of. I hope that will change.
The same argument can, and has been, applied to the sex offender registry. Either someone is sufficiently rehabilitated to live in society, or they need to be in jail or a mental institution.
The biggest argument against the No-Fly List is that it violates the 5th Amendment’s Due Process Clause. A person who has been lawfully convicted of a sex crime and placed on the registry has no such argument.
Right. Remember Saadiq Long, the Air Force veteran who got put on the no-fly list - twice - for the crime of being a Muslim? That’s why the no-fly list is bullshit.
Also, there is enough evidence that the sex offender has at least been a danger in the past to convict him of the original crime. No such evidence is required for the no-fly list. The sex offender registry could be construed as one of the penalties for being convicted of a certain type of crime. The no-fly list is a penalty of looking like, or having a name like, a terrorist (whatever those would be).
It may not surprise you to know that I don’t generally support the sex offender registry. Seems like an extra punishment. Either increase their sentences or let them go. I feel the same way about Guantanamo detainees. If we don’t have the evidence to try them, let them go
As for the NFL (hah!), I’m generally not supportive, but at the bare minimum people should be informed they are on the list and there needs to be a no-BS procedure for people to challenge being put on the list. But I think we could just get rid of it altogether. If someone is such a danger to us that we can’t let them on a plane, then they should be charged with something.
Should there be a “Can’t go to a Shopping Mall” list? Or, “can’t ride the subway” list? Those seem like more dangerous places for terrorism.
I believe that the no-fly list would pass constitutional inquiry if there were a means to appeal it. Pretty simple administrative law principle. I’ll be honest: I didn’t think it would take this long for a judge to agree that.
Well, from a RKBA perspective, I think this is great news. Now maybe Bloomberg will quit squawking about people on the no-fly list being banned from purchasing firearms.
There is a means to appeal it, through the DHS TRIP program. The problem is that in this case appeal just means some other anonymous government employee will look at the information they have on you, decide if you really should be on the list, and then send you a vague letter that tells you nothing.
When the sex offender registry gets challenged in court under ex post facto or cruel and unusual punishment theories, the response seems to be that the registry isn’t a direct punishment against the offender, but a civil regulatory scheme to protect children. Some jurisdictions now do borderline-woo risk assessments to determine what risk level to assign to offenders. That’s certainly something I would expect to be subject to appeal. E.g. offender says, “Yes, I was convicted of the crime, but my local police are now saying I’m at ‘high risk’ when in reality I haven’t committed a sex crime in 15 years. Let me submit my own personality test results, recommendation letters from neighbors, and my lack of a recent criminal record to show that I am well behaved.”
Did you mean to phrase this in the negative? The reason it took this long for one of these cases to come up tails is that there aren’t many people on the list, and those that are don’t find out until they try and fly somewhere (and sometimes probably not even then.) You can’t sue the DHS if you don’t know you have something to sue them about.