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Plaintiffs: No-fly list deprives due process right


PORTLAND, Ore. (AP) - Thirteen people say their placement on the no-fly list deprives them of their due process rights, while lawyers defending the U.S. government say explaining such placement would involve classified information and endanger national security.

In August, U.S. District Court Judge Anna Brown's rejected the government's assertion that people on the no-fly list can travel by other means, and that being on the list does not deprive them of their liberty. She asked the government for more information about its redress procedure to help her determine whether it satisfied due process requirements for the plaintiffs.

Lawyers representing the government said in federal court in Portland, Ore., on Monday that a person's right to a hearing concerning his no-fly list status is limited, given the national-security issues, and cautioned Brown not to "take over the policymaking" by writing new rules if she decides that the system is unfair.

The people seeking notice for their placement on the list were represented by lawyers for the American Civil Liberties Union, who argued that the process is inherently unfair to its clients by refusing to tell them what evidence put them on the list and shutting them out of the appeals process.

No-fly list appeals go to a federal appellate court, which makes a decision based only on government input. That system, the ACLU argues, violates people's rights.

"No one denies that the government has an important national security interest," said ACLU attorney Hina Shamsi. "The question is whether that interest is so all-encompassing that a citizen can be denied ... the fundamental right of due process?"

Shamsi said a better system would allow for people to challenge the unclassified portions of the information used to put them on the list, or to have their attorneys given security clearances to review classified material.

The government has never confirmed nor denied that the plaintiffs are on the list. Government attorney Amy Powell said the plaintiffs don't know whether they're on the no-fly list; they were merely denied boarding, which could have been for several reasons that have nothing to do with the no-fly list.

Powell said the constantly changing nature of the list means they may have been on it at one point, but have since been removed.

That seemed to frustrate Brown, who repeatedly broke into Powell's argument to pose questions about the government's rationale for keeping people from knowing that they were on the list, even after they had been placed on it.

"If a person is on the list and is denied boarding, whether they're told after the fact, it's not reasonable to infer that that is a secret anymore," Brown said.

Powell replied that the list is "highly dynamic."

"Now you're going to say that the person is going to have to continue to purchase tickets every (day)," Brown said.

Would-be travelers banned from a flight can fill out an online form with the Department of Homeland Security. The government examines it and makes a decision on the traveler's status. Those unhappy with the result can get a judicial review, but not a hearing where evidence would be presented.

The Justice Department said the procedure strikes an appropriate balance by providing a review without requiring the release of classified information.

The no-fly list, a well-protected government secret, decides who is barred from flying at U.S. airports, and is shared with ship captains and 22 other countries. The FBI has said the list requires secrecy to protect sensitive investigations and to avoid giving terrorists clues for avoiding detection.

The plaintiffs argue that being on the list harms their reputations. Several who filed suit said they have been surrounded at airport security areas, detained and interrogated.

One of the plaintiffs, Abe Mashal, learned he was on the list when trying to fly from Chicago to Spokane, Wash, according to the lawsuit. The Marine veteran said his presence on the list has cost him business clients, and stopped him from attending a wedding, a funeral and a graduation.

Another, Stephen Durga Persaud of Irvine, Calif., was not allowed to board a flight from the U.S. Virgin Islands to Miami. He ended up taking a five-day boat trip and a four-day train ride to get back to Southern California for the birth of his second child. Others were unable to visit relatives in the Middle East.

The lawsuit filed in 2010 moved between district and appellate courts before a decision last summer by the 9th U.S. Circuit Court of Appeals put the lawsuit back under Brown's jurisdiction.

Brown did not give an estimate for when her decision would be released.


Reach reporter Nigel Duara on Twitter at http://www.twitter.com/nigelduara

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dws51564 March 18 2014 at 3:49 PM

Planes are public accommodations. The TSA is run by the government. The government cannot infringe on rights without Due Process and the Constitution does not state national security is a cause to override those protections. Due Process must be followed or none of our rights are safe.

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1 reply
LL dws51564 March 18 2014 at 9:19 PM

Amen T-I-G-G- E-R - and may others understand this, as well !

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npc317 March 18 2014 at 10:48 AM

Never mind the courts. They have become political instruments of big government.

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a1948ant March 18 2014 at 10:46 AM

Ths same ones that cry about thier freedom are the frist to say the the goverment ain't doing anything.

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llozano March 18 2014 at 9:41 AM

From my understanding anyone can be put on the no-fly list and not even be aware they are on the list. If you want to find out why there is no way to find out or who put you on the list. As is stands right now there is no recourse to this action. The excuse the government makes is that it is due to national security. Seems quite arbitrary, secretive and punitive. Reminds me of the inquisition when anyone could accuse you of some crime against the church and you could not face your accusers. Your either confessed to something you didn't do or face many years in prison and torture as well as losing all of your possessions.

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wboozer@mail.com March 18 2014 at 5:17 AM

"Due process" has been a joke for many years!

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mission1st March 18 2014 at 9:38 AM

Once again, in direct violation. Give up a little civil right for a little safety...

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tortugatommie March 18 2014 at 9:36 AM

Our God given, Constitutionally, guaranteed rights have been slowly eroded
by sucessive administrations over the past 25 years. It's now to the point,
due primarily to Executive Orders, that we no longer have any rights. Our founding
fathers rebelled against far less egregious violations of their rights. Check out
the NDAA legislation passed in Jan. 2012.

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Rich March 18 2014 at 9:36 AM

There really needs to be some oversight and recourse for people put on these government lists. Years ago, even Ted Kennedy ended up on the no fly list somehow and was denied boarding for a flight. Of course, being a Senator, his name came off rather quickly.

There's another super secret government list of "potential terrorist subjects" out there that if you somehow land on it, you're automatically stripped of your enumerated right to keep and bear arms in the state of New Jersey, and there's NO recourse or appeal for that one.

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tdiehard March 18 2014 at 9:55 AM

Having travelled for the US goverment for years I am always amused by The totally stupid Authority (TSA) . In 2010 I was stopped 27 times in a row for "random" spot security checks. I explained to the twit that 27 times in a row isn't random; I was assured it was just chance. I once warned TSA that I had been handling explosives earlier in the day and would test posative for residue... I did and the SWAT team responded. Not even an apology several hours later. What morons we hire!

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1 reply
lr27048 tdiehard March 18 2014 at 10:36 AM

So you have law enforcement ID and you didn't identify yourself?

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1 reply
onemadashell lr27048 March 18 2014 at 12:17 PM

where does he say he is law enforcement? why does anyone have to identify themselves?

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foubabou March 18 2014 at 9:29 AM

I moved out of the US years ago. Will most probably not return and the biggest reason is the foolishness of going through the hassle to fly.

The thought of being put on a no fly list really scares me. I'm a veteran, have worked/lived overseas most of the past 20+ years and remember having very expensive bicycle wheels ruined when TSA checked the bicycle box and refused to let me help repack it. Being placed on a no fly list for some unknown reason is frightening. I've read of US citizens flying out of the US and being refused a flight back in.

A friend recently visited me in Portugal from Spain and she was told to be sure and arrive at the gate 30 minutes before takeoff. Hardly the multiple hours required to get on a plane in the US.

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