When Oregon District Court Judge Anna Brown held that the right to international flight was a protected liberty interest, it was a pretty big deal. It dispelled with the best argument the government had for one of its worst-kept secrets, the no-fly list: International flight is a mere convenience.
After all, you could always swim the ocean, or take a slow boat to China. There may be a right to travel, but not on an airplane. At least not if your name included a Mohammed. And that might be enough to make the list. While there were putative criteria requiring reasonable suspicion together with reasonable inferences, there was no one checking to make sure any name placed on the list met that criteria.
Maybe an agent put a name in the computer and hit the wrong button. Maybe the person was Muslim and prayed at a mosque (“associated with known terrorists”) or was a United States Marine (“trained in the use of military-grade weapons”). Or maybe you pissed off some low-level federal bureaucrat who decided to show you who was boss. Whatever. Since you had no right to fly, placement on the list was no deprivation.
Judge Brown called bullshit.
[I]nternational air travel is a mere convenience in light of the realities of our modern world. Such an argument ignores the numerous reasons that an individual may have for wanting or needing to travel overseas quickly such as the birth of a child, the death of a loved one, a business opportunity, or a religious obligation.
Notably, the “realities of our modern world” doesn’t extend to domestic flight, so don’t put that Conestoga Wagon up on eBay just yet. But the conclusion that there was a liberty interest in international flight was just the first step in a long journey.
Applying Mathews v Eldrige’s deprivation of rights analysis, Judge Brown considered the likelihood of erroneous deprivation.
Defendants argue there is little risk of erroneous deprivation because the TSC has implemented extensive quality controls to ensure that the TSDB includes only individuals who are properly placed there.
Stop laughing. Yes, Judge Brown knows about Rahinah Ibrahim, and how she ended up on the list because some dumbass checked the wrong box. And yes, this indeed reflects “extensive quality controls” as far as the feds are concerned. Consider what less than extensive quality controls would mean.
In any event, the DHS TRIP process suffers from an even more fundamental deficiency. As noted, the reasonable suspicion standard used to accept nominations to the TSDB is a low evidentiary threshold. This low standard is particularly significant in light of Defendants’ refusal to reveal whether travelers who have been denied boarding and who submit DHS TRIP inquiries are on the No-Fly List and, if they are on the List, to provide the travelers with reasons for their inclusion on the List.
The court then applies the generic government interest in combatting terrorism, which produces the generic conclusion that it’s “compelling,” because terrorism. But balancing the Mathews factors, Judge Brown holds that the miserable due process failure of the government’s list, that people are not told they’re on it, or why, precludes any meaningful way to question or challenge the deprivation, which wouldn’t sufficiently compromise national security to ignore.
Thus, without proper notice and an opportunity to be heard, an individual could be doomed to indefinite placement on the NoFly List. Moreover, there is nothing in the DHS TRIP administrative or judicial-review procedures that remedies this fundamental deficiency. The procedures afforded to Plaintiffs through the DHS TRIP process are wholly ineffective and, therefore, fall short of the “elementary and fundamental requirement of due process” to be afforded “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.”
Judge Brown thus holds that the absence of any meaningful opportunity to challenge placement on the list constitutes a due process violation. So there’s a right and a constitutional violation. This brings the court to the next step: what to do about it.
The Court directs the parties to confer as to the next steps in this litigation and to file no later than July 14, 2014, a Joint Status Report with their respective proposals and schedules.
Work it out. At least the time frame is brief, but Judge Brown essentially leaves it up to the government to propose a solution to its due process failure. Where the government will choose to take this, if it doesn’t prefer to reargue the merits of its carefully tuned current system that is absolutely necessary to protect the nation from terrorists, remains a great unknown.
But someday, when your grandchildren and great-grandchildren are able to board an airplane to Mumbai despite having pissed off an agent by insisting on their right to take video of the Grand Canyon, remember that this is where it started.
As for how they will get to the Grand Canyon to take those pictures, there’s always the Conestoga Wagon, since they have no right to enjoy the convenience of flight in our modern world.