Forum Center: Enforcement of No-Fly List may face long delays
By Alex Culpepper
Illustration: Jed Helmers
Shortly after 9/11, the FBI received from the U.S. Attorney General a new office called the Terrorist Screening Center (TSC). Its charter and purpose is to develop and maintain a database list of suspected terrorists. When the TSC uses the database to monitor airline passengers going to and from the United States, it’s called the No-Fly List, and its purpose is to prohibit anyone on the list from boarding an airplane that flies over U.S. airspace. To get on that list, a person must be a suspected terrorist based at least on a “reasonable suspicion.” The Transportation Security Administration (TSA) currently uses and enforces the list.
The list is also secret, and no one who is on the list knows about it until they are refused a seat on the airplane. Currently, about 500 U.S. citizens are on that list of nearly 20,000. By all reports, no practical way exists for being scratched from the list. Right now, a person can complete a Department of Homeland Security redress form and the complaint is sent to the TSC. The TSC performs a review, but reports say the review is secret, does not explain whether a person is even on the list, the person has no way of knowing the issue is resolved and no opportunities are even provided for resolving the issue.
This process is at the heart of the debate about the constitutionality of the No-Fly List, and 13 U.S citizens who were on the list went to federal court to challenge their status. The judge ruled in their favor, saying the rules surrounding the No-Fly List are a violation of due process.
Supporters of the ruling call the inclusion of citizens on the list and lack of redress a “significant deprivation of their liberty.” They claim people are placed on the list without notice and then have no way of getting their names removed. They say it’s the equivalent of being charged with a crime, yet having no day in court to prove their innocence. Supporters say they have no problem with a No-Fly List, but notice about being on the list should be issued and that status must be challengeable.
Opponents of the court ruling say the No-Fly List exists in the interest of national security in a new era and is designed to stop terrorist attacks and hijackings. They further say the secrecy in which it functions is also an issue of security. Opponents go on to say the process for contesting placement on the list is adequate, and petitions before U.S. courts are available. They also make the argument procedures do not need altering because air travel is not a right and other forms of travel exist that have fewer restrictions.
So far, the government has been quiet and has said it is reviewing the decision. No one is saying the list needs scrapped, but the ruling requires the government to align it with constitutional protections. Some believe such action is not necessary because liberty is not being denied, national security is at stake and all possible action should be taken to prevent hijackings. The court’s supporters, however, agree due process cannot be suppressed even in the name of security.
Reach DCP forum moderator Alex Culpepper at AlexCulpepper@DaytonCityPaper.com
Debate Forum Question of the Week:
Is the No-Fly List a violation of individuals’ rights to due process?
Debate Left: The metamorphosis of national security
By Ben Tomkins
After reading the opinion of U.S. Federal Judge Anna Brown, and the conclusion the FBI’s No-Fly List deprives citizens of due process, I have been brought to the conclusion the words “national security” have finally joined the ranks of the increasing Orwellian vocabulary of our government.
For those of you who know my writing, I do not like to reference Orwell or Kafka unless it’s absolutely necessary, because those two names are stigmata of conspiracy theorists, Libertarians, Truthers, Birthers, hippies and all manner of paranoid individuals who run the gamut from the incredibly annoying to the patently insane.
Unfortunately, the aforementioned are an unavoidable byproduct of a democratically-elected government. Although we demand transparency, the fact of the matter is citizens in the U.S. willfully elect a government with the expectation it keep secrets from us. No American – I should say “almost” no American – would expect our government to reveal to the general public nuclear secrets, battle plans or any other information we can’t be trusted as a whole to safeguard.
As such, we are forced to rely on the judgment of our representatives and the oversight of judges and advisors behind closed doors when it comes to certain matters of national security. Particularly in a country like the United States, which has one of the most free and open democracies in the world, that grant of trust will always rest on the edge of a razor.
In the case of Ayman Latif et al v. the heads of the FBI and the TSC, the FBI’s execution of the No-Fly List tramples even the most generous citizen’s definition of minimum requirements for liberty and due process in the name of their bodily safety. The experiences of the plaintiffs read – and I’m sorry for so trite a reference – like an excerpt from “The Castle.”
Ayman and his 12 co-plaintiffs were all denied boarding flights they were allowed to purchase, informed at the airport gate they weren’t allowed to fly, and questioned repeatedly and at length by FBI agents. Several of them were afforded one-time flight waivers, and most of them declined because they would never be able to return to their families. Four of them are former U.S. military members, and all of them have suffered career, school or personal loss.
I haven’t even told you the worst part: I could understand it if they were convicted of a crime, had their passport revoked by another country or had legal proceedings pending. However, none of them was informed they were added to the list, many of them don’t know to this day if they were denied boarding because they’re on the No-Fly List, they haven’t been told why they may or may not be on the No-Fly List and the only avenue they have been given to petition for redress of grievances is directly through the same administration that put them on there in the first place.
This is not tolerable in a modern democratic state.
The crushing sentences from the court opinion come in the form of the three foundational, statutory principles of due process.
1.“The fundamental requisite of due process of law is the opportunity to be heard.”
2.“This right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest.”
3.“An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present objections.”
In all cases, the bare minimum of information any of the defendants got regarding their case was being informed they were on the No-Fly List. Other than that, the best they could do was make vague inferences about their circumstances based on the nature of their questioning. When they objected, they were told in general terms to go screw themselves and write a letter of appeal to the TSC committee that put them on the list refuting the unknown reasons they were put on that list in the first place. You may as well be a dog whose owners have decided you have to sleep outside.
FBI: You can’t board.
You: Why not?
FBI: We can’t tell you that.
You: Um …
FBI: Come with us. We’re going to ask you questions.
You: What are you charging me with?
FBI: We can’t tell you that.
You: I think you have to. Constitution and whatnot? I kind of vote here sometimes.
FBI: Fine. Write a letter to us telling us why you’re innocent.
You: Innocent of what?
FBI: We can’t tell you that.
You: How can I write you a letter telling you why I didn’t do something you’ve already decided I did and won’t tell me what it is?
FBI: We can’t tell you that. And you can’t fly until you do.
Kafka … Orwell … I don’t know what else to say. I may have elected my representatives to keep some secrets to keep me safe, but why they’re punishing my fellow citizens is not one of them. We cannot compromise on transparent application of the criminal standards we’ve agree to abide by, because next time it might be your head on the block.
Reach DCP freelance writer Ben Tomkins at BenTomkins@DaytonCityPaper.com.
Debate Right: No-Fly List protects people including their liberties
By Rob Scott
On my 16th birthday,I received an Ohio driver’s license. I had planned the moment perfectly – even buying my car at 15. There is a lot of responsibility when it comes to getting a driver’s license, specifically when you are a teenager. Not only do you have the legal obligations, but also you have parents with major leverage, or so I remember.
You always hear a driver’s license is not a right, but a privilege. Today, I handle many lost driver’s license cases and continually hear from clients saying they have a right to drive. The truth is, they do not have such a right and having a license is definitely a privilege. The privilege does have administrative procedures through the Ohio Bureau of Motor Vehicles (BMV); when it is lost, the BMV allows for the ability to get the privilege back. Additionally, when not satisfied with the administrative procedures, the process can be brought to court.
A driver’s license, especially in Ohio, is critical in every day life. Without a license, someone is dependent on others for transportation; and Ohio does not have a public transportation system like other major cities that is convenient, cheap and close.
This privilege is similar to that of the recent No-Fly List issues regarding air travel in the United States. The issue has been discussed recently, after a Federal District Court in Oregon determined the No-Fly List is unconstitutional because it violates those on the list Due Process rights.
The Fifth and Fourteenth Amendments to the U.S. Constitution each contain a due process clause. Due process deals with the administration of justice and thus the due process clause acts as a safeguard from arbitrary denial of life, liberty or property by the Government outside the sanction of law. The U.S. Supreme Court interprets the clause as providing four protections: procedural due process, substantive due process, prohibition of vague laws and a vehicle for the incorporation of the Bill of Rights.
Generally, due process guarantees the following (this list is not exhaustive): right to a fair and public trial conducted in a competent manner, right to be present at the trial, right to an impartial jury, right to be heard in one’s own defense, laws must be written so a reasonable person can understand what criminal behavior is, taxes may only be taken for public purposes, property may be taken by the government only for public purposes and owners of taken property must be fairly compensated.
The No-Fly List was started after the 9/11 attacks by the Federal Bureau of Investigation (FBI), under the Terrorist Screening Center (TSC). The purpose is to develop and maintain a database list of suspected terrorists. In order to be on the list, a person must be a suspected terrorist based at least on a “reasonable suspicion.”
Like a redress ability for a driver’s license in Ohio, the No-Fly List has an administrative appeal process as well. Those who have been denied or delayed airline boarding, have been denied or delayed entry into or exit from the U.S. at a port of entry or border crossing or have been repeatedly referred to additional (secondary) screening can file an inquiry to seek redress.
The Department of Homeland Security Traveler Redress Inquiry Program (DHS TRIP) is a single point of contact for individuals who have inquiries or seek resolution regarding difficulties they experienced during their travel screening at transportation hubs – like airports and train stations – or crossing U.S. borders, including: watch list issues, screening problems at ports of entry and situations where travelers believe they have been unfairly or incorrectly delayed, denied boarding or identified for additional screening at our nation’s transportation hubs.
DHS TRIP is part of an effort by the departments of State and Homeland Security to welcome legitimate travelers while still securing our country from those who want to do us harm.
There is an appropriate process for the redress of anyone who has been wrongfully placed on the No-Fly List. Also, the ability to fly in an airplane for travel is not a right, but rather a privilege. Commercial airlines are owned privately and not owned by the government. There are other avenues of travel those locked out of flying can utilize.
Ultimately, the main argument for the No-Fly List is for the protection of people who fly and those who could be harmed by another 9/11-style of attack. Government’s main role is for the protection of their citizenry.
The U.S. Supreme Court has determined in many instances a little impingement into liberty is justified as long as it can be proven to be for a legitimate protection. The No-Fly List clearly falls within this category. Not only has the No-Fly List probably prevented many terrorist attacks in the U.S., but it also serves as deterrent for those wishing to do harm. There are ample administrative protections for those on the list to redress to be removed.
Rob Scott is a general practice attorney at Oldham & Deitering, LLC. Scott is a Kettering City Councilman, founder of the Dayton Tea Party, member of the Dayton Masonic Lodge and Kettering Rotary. He can be contacted at email@example.com or gemcitylaw.com.