Dave Farber
2018-10-10 11:20:21 UTC
Date: October 10, 2018 20:01:40 JST
Subject: [Dewayne-Net] The Government Is Blacklisting People Based on Predictions of Future Crimes
The Government Is Blacklisting People Based on Predictions of Future Crimes
Our clients on the No Fly List are seeking a fair process to challenge and correct government error.
By Hina Shamsi, Director, ACLU National Security Project
Oct 8 2018
<https://medium.com/aclu/the-government-is-blacklisting-people-based-on-predictions-of-future-crimes-19378218dc6e>
Imagine: Youâve never been charged with any crime, yet the government blacklists you as a terrorism threat and bans you from flying indefinitely. Youâre separated from family members, canât get to weddings or funerals or religious obligations, and lose jobs because you canât travel or your employer finds out youâre blacklisted.
You know what the government has done violates your constitutionally protected ability to travel and to be free from false stigma. You have rightsâââthe Constitution guarantees due process. So you ask the government for its reasons and evidence, as well as a live hearing to establish your credibility and innocence. In response, the government says it put you on the No Fly List because it predicts that you might commit a violent terrorism act in the future, but it wonât tell you all the reasons why or give you any evidence or the hearing you seek.
This is the Kafkaesque nightmare in which our clients on the No Fly List have been trapped for eight years. And itâs the unfair system weâre challenging on their behalf in an argument Tuesday before a federal appeals court in Portland, Oregon.
Throughout this long-running case, our clients have sought a fair process in order to clear their names and regain rights most Americans take for granted.
At first, they achieved a major success. In 2014, a federal district court judge struck down as unconstitutional the governmentâs original procedures for people on the No Fly List to challenge their placement. Under that system, the government wouldnât even confirm whether people were on the list or not.
â[W]ithout proper notice and an opportunity to be heard, an individual could be doomed to indefinite placement on the No-Fly List,â the court found. â[T]he absence of any meaningful procedures to afford Plaintiffs the opportunity to contest their placement on the No-Fly List violates Plaintiffsâ rights to procedural due process.â
The court ordered reforms. As a result, the government told seven of our clients that they were cleared to fly, but it never told them why theyâd been put on the No Fly List in the first place. It also announced in April 2015 that under its revised process, it would tell U.S. citizens and lawful permanent residents whether they are on the No Fly Listâââand possibly provide reasons. But when the government applied its reforms to our clients still on the list, it became clear just how inadequate the changes were.
The government still refuses to provide meaningful notice of the reasons our clients are blacklisted, the basis for those reasons, and a live hearing before a neutral decision-maker. Much as before, our clients are left to guess at the governmentâs case and so canât actually challenge government error.
Through our lawsuit, weâve also learned that the government is blacklisting people who have never even been charged with wrongdoing based on a prediction that they might someday engage in terrorism. The government eventually revealed that the criteria it uses to ban people from flying are all based on its view that they are a âthreatââââa term that the government has never publicly defined and one that encompasses the entire universe of First Amendment-protected speech, association, and conduct that falls short of committing a prohibited crime.
This is unconstitutionally vague, and it invites arbitrary and discriminatory government action. It is perhaps no coincidence that all our clients are Muslim.
We provided the court with expert evidenceâââwhich the government never refutedâââestablishing that government predictions like these guarantee a high risk of error. When the government undertakes such a perilous endeavor, basic due process requires rigorous procedural safeguards.
Nonetheless, in a decision that was unprecedented and unjustified, the district court concluded that the governmentâs revised process satisfied constitutional requirements.
The court largely rested its incorrect conclusion on a novel groundâââthat âundue risk to national securityâ justified the governmentâs secrecy and deficient process. But no other court has ever permitted blanket assertions of national security risk, untethered to specific justifications that courts then adjudicate, to legitimize a process so flawed.
To the contrary, courts have time-tested means to manage between legitimate government secrecy needs and individual rights. More fundamentally, the Supreme Court has made clear that the âessential constitutional promisesâ of meaningful notice and an opportunity to be heard âmay not be erodedâ in cases implicating national security.
Now, on behalf of our clients, weâre asking the Ninth Circuit Court of Appeals to uphold the Constitutionâs promiseâââand its guarantee of fairness.
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-------------------------------------------Subject: [Dewayne-Net] The Government Is Blacklisting People Based on Predictions of Future Crimes
The Government Is Blacklisting People Based on Predictions of Future Crimes
Our clients on the No Fly List are seeking a fair process to challenge and correct government error.
By Hina Shamsi, Director, ACLU National Security Project
Oct 8 2018
<https://medium.com/aclu/the-government-is-blacklisting-people-based-on-predictions-of-future-crimes-19378218dc6e>
Imagine: Youâve never been charged with any crime, yet the government blacklists you as a terrorism threat and bans you from flying indefinitely. Youâre separated from family members, canât get to weddings or funerals or religious obligations, and lose jobs because you canât travel or your employer finds out youâre blacklisted.
You know what the government has done violates your constitutionally protected ability to travel and to be free from false stigma. You have rightsâââthe Constitution guarantees due process. So you ask the government for its reasons and evidence, as well as a live hearing to establish your credibility and innocence. In response, the government says it put you on the No Fly List because it predicts that you might commit a violent terrorism act in the future, but it wonât tell you all the reasons why or give you any evidence or the hearing you seek.
This is the Kafkaesque nightmare in which our clients on the No Fly List have been trapped for eight years. And itâs the unfair system weâre challenging on their behalf in an argument Tuesday before a federal appeals court in Portland, Oregon.
Throughout this long-running case, our clients have sought a fair process in order to clear their names and regain rights most Americans take for granted.
At first, they achieved a major success. In 2014, a federal district court judge struck down as unconstitutional the governmentâs original procedures for people on the No Fly List to challenge their placement. Under that system, the government wouldnât even confirm whether people were on the list or not.
â[W]ithout proper notice and an opportunity to be heard, an individual could be doomed to indefinite placement on the No-Fly List,â the court found. â[T]he absence of any meaningful procedures to afford Plaintiffs the opportunity to contest their placement on the No-Fly List violates Plaintiffsâ rights to procedural due process.â
The court ordered reforms. As a result, the government told seven of our clients that they were cleared to fly, but it never told them why theyâd been put on the No Fly List in the first place. It also announced in April 2015 that under its revised process, it would tell U.S. citizens and lawful permanent residents whether they are on the No Fly Listâââand possibly provide reasons. But when the government applied its reforms to our clients still on the list, it became clear just how inadequate the changes were.
The government still refuses to provide meaningful notice of the reasons our clients are blacklisted, the basis for those reasons, and a live hearing before a neutral decision-maker. Much as before, our clients are left to guess at the governmentâs case and so canât actually challenge government error.
Through our lawsuit, weâve also learned that the government is blacklisting people who have never even been charged with wrongdoing based on a prediction that they might someday engage in terrorism. The government eventually revealed that the criteria it uses to ban people from flying are all based on its view that they are a âthreatââââa term that the government has never publicly defined and one that encompasses the entire universe of First Amendment-protected speech, association, and conduct that falls short of committing a prohibited crime.
This is unconstitutionally vague, and it invites arbitrary and discriminatory government action. It is perhaps no coincidence that all our clients are Muslim.
We provided the court with expert evidenceâââwhich the government never refutedâââestablishing that government predictions like these guarantee a high risk of error. When the government undertakes such a perilous endeavor, basic due process requires rigorous procedural safeguards.
Nonetheless, in a decision that was unprecedented and unjustified, the district court concluded that the governmentâs revised process satisfied constitutional requirements.
The court largely rested its incorrect conclusion on a novel groundâââthat âundue risk to national securityâ justified the governmentâs secrecy and deficient process. But no other court has ever permitted blanket assertions of national security risk, untethered to specific justifications that courts then adjudicate, to legitimize a process so flawed.
To the contrary, courts have time-tested means to manage between legitimate government secrecy needs and individual rights. More fundamentally, the Supreme Court has made clear that the âessential constitutional promisesâ of meaningful notice and an opportunity to be heard âmay not be erodedâ in cases implicating national security.
Now, on behalf of our clients, weâre asking the Ninth Circuit Court of Appeals to uphold the Constitutionâs promiseâââand its guarantee of fairness.
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