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Federal Judge Rules No-Fly List Process Is Unconstitutional

A federal judge in Oregon says the process surrounding the federal government’s “no-fly list” is unconstitutional.

Specifically, U.S. District Judge Anna Brown said the process doesn’t give Americans on the list an effective way to challenge their inclusion. Full Article

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  1. cool rso guy

    Here an article on

    Judge: No-fly list violated constitutional rights

    The U.S. government deprived 13 people on its no-fly list of their constitutional right to travel and gave them no adequate way to challenge their placement on the list, a federal judge said Tuesday in the nation’s first ruling finding the no-fly list redress procedures unconstitutional.

    U.S. District Court Judge Anna Brown’s decision says the procedures lack a meaningful mechanism for people to challenge their placement on the list.

    • brunello

      Seeing this, it has popped into my head that similar due-process arguments might be used to force California to afford registrants a meaningful opportunity to get removed from the registry.

      • brunello

        And as for international travel by registrants here are a couple of gems from judge Brown’s 65-page ruling:
        “The court concludes international travel is not a mere convenience or luxury in this modern world. Indeed, for many international travel is a necessary aspect of liberties sacred to members of a free society,”
        “Accordingly, on this record the court concludes plaintiffs inclusion on the no-fly list constitutes a significant deprivation of their liberty interests in international travel,” Brown said.

      • Anonymous Nobody

        Brunello, yes, your keyword this is “meaningful.” The impossible standard being set for a certificate of rehabilitation of a registrant is definitely now a “meaningful opportunity” to get out from under registration for those who the certificate would relive of that opportunity. And a pardon definitely is not for those who need a pard in order to stop registering.

        In fact, the reason they set those extraordinarily high standards is to make it so people could not get out from under registration — yet still have an argument that they could, as fake an argument as that is. The legal requirements that they must provide some way have to be interpreted as a “meaningful” way. California does NOT have a meaningful way. It once did, letting those with probation stop after getting 1203.4 relief, and those who were sent to prison stop by getting a certificate rather than a pardon.

    • j

      I heard about this on the news this afternoon and I’m glad you posted your entry.

      This is about equal protection under the law; ex post facto punishment; the presumption of guilt; distorted statistics; fear mongering; – you name it and it is a free ride for lawmakers at this point with very few of the judiciary with the intestinal fortitude to move off dead center.

      The lack of a mechanism is what legislators here have accomplished. That there can be no certificate of of rehabilitation is the most outlandish of anything. How can there be any sense in any of these laws when there are clauses like that?!

    • David Kennerly

      I had been sent a link (by a colleague) to that effect immediately before I read your comment, so have not had much time to ponder its applicability to us. It may well offer the RSO some relief although I would not be surprised to see, judicially “carved-out”, as it were, an exception for “sex offenders” much in the same way that in an earlier ruling, a judge had found that the more intrusive level of digital device searching, when conducted against most travelers, was unjustifiable but WAS justifiable when carried out against “sex offenders” since their (sex offender’s) status, alone, gave rise to the requisite “reasonable suspicion” which enabled their enhanced scrutiny.

      But there’s an even greater reason for pessimism here: the U.S. is asserting that they, essentially, have “no say in the matter” as to whether other governments bar U.S. sex offenders from their shores since all it (U.S. gov’t) is doing is providing them with information about U.S. citizens (while feigning an air of indifferent neutrality) and that it is their (foreign gov’t’s) decision, alone, as to which policies they wish to implement as a result. So they have built a kind of “plausible deniability” into this mechanism to insulate themselves from a responsibility to their own citizens. This is very, very ugly and cynical. While I am not a lawyer, it seems to me that this point, itself, may well become the crux of any future legal wrangling even if it eventually IS found to be an unreasonable expectation on the part of government.

      This cries out for the reflections of a constitutional law scholar (and no, not Barack Obama) for their opinion in this regard.


      • David Kennerly

        One other point: Who now is in possession of this (criminal record) data? Has it already been “given” to Interpol and “given” to other countries or must it be accessed “afresh” from the U.S. each time a traveler attempts to enter a particular country?

        I ask this because, if it IS successfully challenged in a U.S. court, does that mean that all of the data previously shared with other countries LEAVES THEIR possession, too? Obviously, information which they already OWN, as such, is NOT effected by a U.S. judicial finding, no matter which way such a ruling might go.

        Is there any PRACTICAL remedy for those whose information has ALREADY been given out that will result in their future, unimpeded travel?

        The further down I dig, conceptually, the darker it becomes, I must say.

      • Q

        Especially not Barack Obama


    If I remember my history, the late 30’s was when Hitler halted all travel out of Germany and German held areas by all of their Jew “citizens”?

  3. Anonymous Nobody

    I was just coming here to post this ruling myself, but you guys beat me to it. I will simply add the link to the Los Angeles Times story on it:

    Key info there to work this to the benefit of registrants, who are now being effectively blocked from traveling to other countries by the US sending info that you are a registrant (and who knows who other info, which might or might not even be accurate) to other countries when you board the plane (and you don’t even find out until AFTER you arrive, are rejected and sent back):

    “Therefore, she said, the government must change its procedures to allow U.S. citizens who find themselves on the no-fly list to challenge the designation.

    “She ordered the government to come up with new procedures that protect citizens’ due-process rights without jeopardizing national security. Passengers must be given notice of their inclusion on the list and a rationale for the designation and be allowed to submit evidence to challenge it, Brown said.”

    If due process is required before listing someone who is supposedly linked to terrorists, then it certainly is for someone who was convicted of a sex offense but has completed their sentence, especially if just a misdemeanor. AND, very importantly, they simply must notify YOU before they set you up to have your information sent to other countries after you board the plane. To not even find that out until you have spent a LOT of money, organized other people, and arrive in the other country itself is criminal! To be caught by surprise like that and suffer such a huge loss of money and interfere with everyone else you might have been involved with for that trip is far worse than simply not letting you board!

    And once a registrant is notified — which must be long enough in advance for a reasonable opportunity to challenge — they must be allowed due process, and not have to show a pardon or and application for one (which is what a certificate of rehabilitation is).

    What I just said is MINIMAL. In reality, this information should never be sent regardless! The GOVERNMENT has freed you after your sentence is completed. They can’t then LOCXK you into any particular place, as they are doing by making impossible for you to go to another country.

  4. C

    Wow, SCOTUS is on a roll of positivism…

    Supreme Court bans warrantless cell phone searches, updates privacy laws

    Keep it coming! 🙂

  5. Brubaker

    This federal judge keeps our Constitution alive and well…thank you for that HomeRun for all people.

  6. Joe

    I fail to see how this is remotely relevant. A registrant is not barred from flying anywhere. You can board any flight as long as you have a ticket, acceptable ID and no outstanding warrants (and have complied with state law regarding notification if any, hence, no warrants). Within the US there should be no issue whatsoever.

    The US routinely turns away people from all over the globe with criminal convictions attempting to enter the country. The plaintiffs in this case were on a no-fly list because of certain suspicions. All the government is doing to RSOs is inform their foreign friends of certain facts / convictions. No more, no less. Call it neighborly concern??

    The only thing is that a foreign country may deny you entry if they so choose. Some will and some won’t. You are free to travel there to find out. Any foreign country is well within their rights to refuse entry to anyone they wish – that is what sovereign nations get to do. When that happens you get to turn right around, board another aircraft and come right back. Actually, that is the exact opposite of a ‘no-fly’ list – fly twice on the same day 🙂

    Sure you are hassled at re-entry, but never prohibited from re-entering the US. Maybe some day soon?

    Maybe I am missing something but I do not see the relevance. A much needed, probably temporary, respite from the descent into a complete police state, yes, but nothing pertaining to RSO issues.

  7. Tim

    I think the main RSO issues are finding employment, getting a home with a roof in a safe neighborhood, not living in fear for your life or your families lives, being able to move from one part of the country to another without having to notify police of your every move, being able to use a park or library, not being put in jail for things that are not crimes for other people, not having to explain why you are not a monster to those who see your name on the list. If you can travel internationally, more power to you. Maybe I got it wrong, but I think most RSO’s can only dream of that.

  8. Marie

    I see a loose connection for sex offenders.

    But I’d really love to know what data other countries have access to.

    Is it our full history? Only if we are still registered? Is it attached to our passport or do they search by name?

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