I Believe I Can Fly

The American Civil Liberties Union scored a huge win in the District of Oregon with the opinion of Judge Anna Brown in Latif v. Holder. The suit was brought on behalf of a bunch of people with terrorist-y sounding names who showed up at the airport all ready to hop on a plane and munch peanuts, only to be told that it ain’t happening.  Some were told they were on the “No Fly List.” Most weren’t told much of anything at all, aside from their patronage was not wanted.

The case was carefully constructed, as plaintiffs with names like Ibraheim Mashal weren’t scary terrorists, but veterans of the United States Marine Corps.

Not This Abe Mashal

This Abe Mashal

It had been generally understood that Americans had a constitutional right to travel their nation freely (not for free, but freely) without hindrance, but as the government argued, that didn’t mean Americans were entitled to use whatever mode of transportation they wanted. Feel free to walk from Trenton to Fresno, pal, but you’re not getting on that airplane.

And so the government maintained its “No Fly List,” which it neither confirms nor denies, and anyone nominated to be on it by some unknown government entity, whether rightly, wrongly, mistakenly or not, can go anywhere they want to go provided they don’t mind doing so without benefit of any transportation devised in the past two centuries.

For the first time, a federal court has ruled otherwise. In the first of what will necessarily be a series of decisions before the details are worked out, Judge Brown has held there to be a right to fly. From the ACLU press release:

In yesterday’s ruling, U.S. District Judge Anna J. Brown wrote, “Although there are perhaps viable alternatives to flying for domestic travel within the continental United States such as traveling by car or train, the Court disagrees with Defendants’ contention that international air travel is a mere convenience in light of the realities of our modern world. Such an argument ignores the numerous reasons an individual may have for wanting or needing to travel overseas quickly such as for the birth of a child, the death of a loved one, a business opportunity, or a religious obligation… the Court concludes on this record that Plaintiffs have a constitutionally-protected liberty interest in traveling internationally by air, which is affected by being placed on the list.”

Yes, you read that right. The rationale extents to international flight, though not domestic flight, even thought the same arguments would seem to apply to a person who needs to get from Dallas to Kennebunkport before the death of an aged loved one, and neither walking, driving, train nor surrey is going to cut it.  But then, it’s better than swimming across the Atlantic to get back to the old country in time.

What is quite striking is the effort required of Judge Brown to hold a liberty interest at stake in the ability of an American to fly.  This may be the land of the free, but the skies are under tight restrictions.  Some would conclude it more than sufficient that there being the technological ability to move at a speed of 600 miles per hour at 35,000 feet in the air, and having sufficient credit on one’s plastic card to obtain a ticket to ride, that would be a good enough reason to conclude that a person should be allowed on an airplane.  Kind of a free market thing.

But this is the first step, a critical first step, in challenging why the United States has put some 20,000 people on a secret list for unknown reasons that keeps them earthbound.  To add insult to injury, while there is a form to challenge placement on the list, there is no involvement in arguing one’s position, which is particularly hard when one has no clue why they’re on the list in the first place so that they can dispute the evidence.

It may be just a colossal mistake, or some petty official woman’s way of paying you back for being mean to her on some bureaucratic line. Who knows? You sure don’t, and if the government has its way, you never will.

What drives this insanity is sadly obvious. Having already been burned by 9/11, the government needs to demonstrate its expertise in closing the barn door after the horses have long since left. They will never again allow anyone who could potentially be a terrorist on a plane, because they already blew it. What makes someone a potential terrorist can be as simple as an Arab-sounding name or a well-placed call from the snitch at the 7-Eleven.

Nobody knows, but it means that you are denied access to the basic modes of transportation that allow one to function in our semi-modern nation.  Try explaining to your boss at your new job why you can’t go see that client in Des Moines tomorrow afternoon. That will go over well, I’m sure.

But Judge Brown’s order is a start, a huge start, since there has never before been a ruling that held Americans to have any constitutionally protected interest in flying anywhere, which means the government was free to trample our movement at will with only rational basis scrutiny.

So a hat tip, and an appreciative thank you, to the ACLU for its excellent work, and sending good vibes to Judge Brown that she will find a way to expand the domestic liberty interests of Americans beyond the fringed surrey.  Think Honolulu, judge. I hear it’s lovely this time of year. Actually, every time of year, if you get my drift.

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