Published June 21, 2013
PORTLAND, Ore. – A federal judge took a dim view Friday of the government's argument that air travel isn't a fundamental right to U.S. citizens on the no-fly list.
The list, a well-protected government secret, decides who may fly from U.S. airports. It is also, according to testimony, shared with operators of passenger ships as well as 22 other countries.
Thirteen people on the no-fly list have sued the U.S. government, arguing that their placement deprives them of due process and smears their reputation by branding them as terrorists. Several of the men who filed suit have been surrounded at airport security areas, detained and interrogated.
The suit seeks to either remove the plaintiffs from the no-fly list or tell them why they are on it.
Some of the men suing the government took alternate means to get back to the U.S. after their placement on the list, and government attorney Scott Risner used that as proof that they have alternatives to air travel.
U.S. District Judge Anna J. Brown in Portland said the government's argument about alternatives to air travel doesn't take into account the reality of modern life and "seems fundamentally wrong."
People could also theoretically take a rocket ship, the judge said at Friday's hearing. She noted that sea and land travel may not satisfy the need to visit a sick relative in time, and the plaintiffs "don't have transporter rooms like in Star Trek."
Brown said she didn't know when she will issue a ruling.
The case dates to 2010, when the American Civil Liberties Union first filed suit on behalf of the plaintiffs, some of whom are military veterans. A year later, Brown said she did not have authority over the Transportation Security Administration and dismissed the case, but the ACLU appealed.
A federal appellate court panel ruled last summer that the case is indeed within the jurisdiction of Brown's court.
ACLU lawyer Nusrat Choudhury said the no-fly list is a "draconian restriction" that has blocked the men on the list from visiting spouses overseas or taking a Muslim parent on a pilgrimage to Mecca.
Risner said placement on the list doesn't stop people from traveling, and stopping people from using one mode of travel doesn't deprive them of their liberty. That's a key question in determining whether the government must ensure due process and one that's at the heart of the constitutionality of being placed on the list.
"We're not suggesting that there's not a convenience in air travel," Risner said. "(But) there's no right to travel without impediments. That's what's happening here.
"I think that air travel is unique, and that's true in convenience, and that's true because of the threat of terrorist attacks."
Brown seemed to bristle at that argument.
"To call it 'convenience' is marginalizing their argument," Brown said. He said alternatives to flying are significantly more expensive. "It's hugely time-consuming, and who knows what impediments there are between the Port of Portland and other countries."
The FBI has said the list requires secrecy to protect sensitive investigations and to avoid giving terrorists clues for avoiding detection.
Reach reporter Nigel Duara at http://www.twitter.com/nigelduara .