Judge Spars With Feds|Over No-Fly List Secrets

     PORTLAND, Ore. (CN) – A federal judge grilled a government lawyer in a hearing Wednesday over its secret reasons for putting Americans on the no-fly list initiated in the wake of the Sept. 11, 2001, terrorist attacks.
     Ten Americans filed a federal complaint in June 2010, claiming the government put them on its no-fly list without telling them they were on it and refused to reveal the reasons for doing so. Three more later joined the case as plaintiffs
     In August 2013, U.S. District Judge Anna Brown rejected the government’s argument that Americans don’t have a constitutional right to fly. Brown said constitutional rights are at stake when the government stigmatizes Americans as suspected terrorists and bans them from traveling internationally.
     The following June, Brown also nixed the government’s claim that national security prevents it from revealing who is on the no-fly list and the reasons for their placement on the list, and bars letting a neutral decisionmaker hear evidence about whether each person should be placed there.
     Brown found that it was unconstitutional for the government to refuse to provide notice or hearings about a person’s placement on the list.
     In April of this year, the government announced that it would now notify U.S. citizens when they are placed on the list and said it might tell them why.
     Since then, the government has released five people from the list who were formerly plaintiffs in this case. But it still hasn’t provided any reasons for the placement of people still on the list and hasn’t held any neutral hearings.
     And the government has said it is making “predictive judgments” about whether people on the list might possibly pose a threat in the future, even though they have never been charged with or convicted of a crime.
     Hina Shamsi, director of the National Security Project for the American Civil Liberties Union, which is representing most of the plaintiffs, said these kinds of predictions guarantee a high risk of error, and demanded that the court grant fundamental safeguards over the process like requiring the government to reveal its reasons for putting people on the list.
     “The government is limiting a constitutionally protected liberty interest while saying it cannot provide all the reasons for making that kind of determination,” Shamsi said in a hearing Wednesday on the 14th floor of the Mark O. Hatfield Courthouse. “That is a very dangerous position.”
     “Deference to security concerns does not override due process,” Shamsi argued. “The fact the information may be classified, or the government says that it is, does not determine the role of the judiciary. What is at issue when the government says classified information is at stake? It would be better if Congress would address this, but when and if that happens, none of us knows. Meanwhile, plaintiffs are suffering harm.”
     Brigham Bowen with the Justice Department said that revealing the reasons for putting people on the list was out of the question.
     “The notion that the government would turn over classified information to individuals the government has determined are at risk of being involved in terrorism is absurd,” Bowen argued.
     The parties both moved for summary judgment, with the government claiming its new process was fair and the plaintiffs arguing the opposite.
     Judge Brown said the case was a complicated one.
     “Despite your significant briefing, no one has been able to give me controlling precedent because this has never been done before,” Brown said. “If ever I needed oral arguments, this is the case.”
     Brown said the case-law cited by both sides does not directly apply.
     “What you’ve given me, of course, is by analogy and I want to know how much weight I can place on cases decided in different contexts,” Brown said.
     The government claimed in its motion that it had revealed all the reasons for listing Americans that it could without compromising national security, and moved for summary judgment.
     Judge Brown questioned Bowen about the basis for that motion.
     “You’re asserting that I should be able to determine as a matter of law that the process is inherently fair,” Brown said. “I’m troubled by that assertion. How do I know that the government has disclosed all that it can fairly disclose if you are not showing even a declaration by a person sworn on a statement of their knowledge? How do I know that? How do I know that person’s credentials?”
     Bowen acknowledged the difficulty.
     “If the court is of the mind that it needs those particulars to make that assessment, we will take that under advisement,” Bowen said. “We are of the position that it’s not necessary.”
     Brown again hammered home that the government had given her too little to grant its request.
     “It’s as if you are saying any process would be sufficient because there will be some kind of review by some court at some time,” Brown said. “I’m trying hard to understand how the court can grant your motion on this record if the court can’t even tell what was considered.”
     Bowen offered the judge a suggestion.
     “It’s not that the court can’t,” Bowen said. “It’s that we haven’t determined what that looks like. The court could deny both motions for summary judgment, and provide a brief guiding us on what evidence to provide.”
     Brown scoffed, “You don’t get to brief and brief and brief. When you move for summary judgment, you have to move on the record you’ve created. And when your position is, ‘We relied on a lot of information we haven’t even told you,’ I’m trying to understand how that argument leads to a basis for the court to find that, as a matter of law, the process is fair.”
     Bowen said the reason the government can’t be more forthcoming is because “we have determined that that information needs to stay behind the wall.”
     Brown answered, “So I deny defendant’s motion potentially on the basis that the record does not reflect fair due process. And I deny plaintiffs’ motion because plaintiffs’ assertions are not based on established law. And what does that gain us?”
     “I think it gains us further proceedings, your honor,” Bowen said.
     “I think we’re guaranteed that either way,” Brown said.

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