Tuesday, September 3, 2013
Without a doubt the federal government has the authority — and an obligation — to protect Americans from acts of terror.
However, those protections can be implemented only if they don’t violate rights granted by the Constitution.
A federal judge in Portland was on target last week when she ruled those who were placed on the U.S. government’s secret no-fly list have been denied their right to due process.
U.S. District Judge Anna J. Brown rejected the government’s argument that the right to due process did not apply because traveling by air is optional and those who needed to travel could go by other means such as cars and trains.
Brown said the optional argument ignores “the realities of our modern world.” Flying is a necessity today and people have a constitutionally protected interest in traveling by air.
The no-fly list is itself not a problem, the concern comes in the way travelers are blindsided when they learn they can’t fly. And they are offered no explanation. Instead, they are told to fill out a form online and wait for the government to make a decision on whether they can fly.
The FBI has said the no-fly list requires secrecy to protect sensitive investigations and to avoid giving terrorists clues for avoiding detection.
The government is essentially asking the American people to trust it.
President Ronald Reagan was correct — “Trust, but verify.”
Allowing people due process to challenge the no-fly decision does not undermine security. It simply allows those mistakenly put on the list — and it’s happened more than once — to clear their names.
The American Civil Liberties Union filed the lawsuit on behalf of 13 people on the no-fly list seeking to be removed from the list or told why their names appear.
A Marine veteran is one of the 13 plaintiffs. Abe Mashal learned he was on the list when trying to fly from Chicago to Spokane for a business trip. Not being able to fly cost him clients and has kept him from a wedding, a funeral and a graduation. Other plaintiffs contend inclusion on the list harms their reputations.
Other plaintiffs say they were surrounded, detained and interrogated.
If it can happen to Mashal, it could happen to any one of us. Having the same or similar name as a suspected terrorist, even a typo, can mistakenly turn lives upside down.
Judge Brown got it right and it is hoped her ruling is sustained on appeal. Due process for those accused and judicial oversight are necessary to protect innocent Americans.