Court rules “no fly list” unconstitutional

A Federal District Court judge in Oregon has ruled that the procedures for reviewing whether it was appropriate to put someone’s name on the government’s no fly list were inadequate and violated Americans’ Fifth Amendment right to due process.

From the New York Times:

Judge Brown wrote that the redress procedures were “wholly ineffective” and created a “high risk of erroneous deprivation” of the plaintiffs’ rights, leaving them potentially “doomed to indefinite placement on the no-fly list,” in violation of the Fifth Amendment.

“The absence of any meaningful procedures to afford plaintiffs the opportunity to contest their placement on the no-fly list violates plaintiffs’ rights to procedural due process,” she wrote.

Under the ruling, the Department of Homeland Security must give the plaintiffs more information about why they are on the list and an opportunity to present evidence to rebut the issues. It must also come up with a new mechanism generally for allowing people to challenge their inclusion.

This should have happened years ago. There is an established right for US citizens to travel freely within the United States, and there is also a basic due process right in challenging any governmental action adversely affecting a citizen.

Reactions to the invalidation of DOMA

US Secretary of Defense Chuck Hagel:

The Department of Defense welcomes the Supreme Court’s decision today on the Defense of Marriage Act. The department will immediately begin the process of implementing the Supreme Court’s decision in consultation with the Department of Justice and other executive branch agencies. The Department of Defense intends to make the same benefits available to all military spouses — regardless of sexual orientation — as soon as possible. That is now the law and it is the right thing to do.

Every person who serves our nation in uniform stepped forward with courage and commitment. All that matters is their patriotism, their willingness to serve their country, and their qualifications to do so. Today’s ruling helps ensure that all men and women who serve this country can be treated fairly and equally, with the full dignity and respect they so richly deserve.

Jack Balkin:

Windsor is a reminder of the fact that the scrutiny rules we teach our students as gospel are a relatively recent invention–less than fifty years old.   They were designed to make it easier to think about when laws are constitutionally unequal. But sometimes they don’t really assist our understanding of the issues; they just get in the way.  In fact, you actually can explain Windsor in terms of the existing structure– it’s a “rational basis with a bite” case, and that’s how the casebooks (including the one I co-author) will probably classify it. But we should be able to look behind the doctrinal superstructure, which explains little, and see the deeper principles at stake, principles that have a long history in American constitutional thought.  DOMA singled out gay people for special burdens in an important area of social life; it declared their marriages less valuable, and therefore, to that extent, it made them second class citizens.  Even if this wasn’t obvious in 1996, it is increasingly obvious today.

Andrew Sullivan:

Some final thoughts after so many years of so many thoughts. Marriage is not a political act; it’s a human one. It is based on love, before it is rooted in law. Same-sex marriages have always existed because the human heart has always existed in complicated, beautiful and strange ways. But to have them recognized by the wider community, protected from vengeful relatives, preserved in times of illness and death, and elevated as a responsible, adult and equal contribution to our common good is a huge moment in human consciousness. It has happened elsewhere. But here in America, the debate was the most profound, lengthy and impassioned. This country’s democratic institutions made this a tough road but thereby also gave us the chance and time to persuade the country, which we did. I understand and respect those who in good conscience fought this tooth and nail. I am saddened by how many failed to see past elaborate, ancient codes of conduct toward the ultimate good of equal human dignity.



The Onion:

The nation’s homosexuals should rest easy knowing their freedoms lie within famously rational state legislatures.

Rand Paul (apparently worried about marriages to extraterrestrials):

I think this is the conundrum and gets back to what you were saying in the opening — whether or not churches should decide this. But it is difficult because if we have no laws on this people take it to one extension further. Does it have to be humans?

Rush Limbaugh:

A victory for privacy

From the EFF:

A federal appeals court has found a Florida man’s constitutional rights were violated when he was imprisoned for refusing to decrypt data on several devices. This is the first time an appellate court has ruled the 5th Amendment protects against forced decryption – a major victory for constitutional rights in the digital age.


The Electronic Frontier Foundation (EFF) filed an amicus brief under seal, arguing that the man had a valid Fifth Amendment privilege against self-incrimination, and that the government’s attempt to force him to decrypt the data was unconstitutional. The 11th U.S. Circuit Court of Appeals agreed, ruling that the act of decrypting data is testimonial and therefore protected by the Fifth Amendment. Furthermore, the government’s limited offer of immunity in this case was insufficient to protect his constitutional right, because it did not extend to the government’s use of the decrypted data as evidence against him in a prosecution.

You can read the full opinion here.

Unfortunately, a second case reached the opposite position. An analysis of the two opinions seems to indicate that police can force a suspect to provide the password if they know what is included in the encrypted data, but not if they don’t.

Prohibition of self-incrimmination

The Fifth Amendment to the US Constitution provides, in part:

… nor shall [any person] be compelled in any criminal case to be a witness against himself, …

So what should happen if a citizen encrypts the hard drive on his computer, the computer is seized by police, and the police seek a court order compelling the citizen to provide the password to the police.  If the password is not written down, the only way to provide the password is to speak it. But the accused has a right to remain silent, based on the Fifth Amendment. That should be the end of the discussion.

Well, such a case is now under consideration by a Federal District Court Judge in Colorado. Could be an interesting ruling and regardless of the ruling it is likely to be appealed. The EFF is on the case.