aGameOfThrones
08-28-2014, 08:08 PM
Alan Light
The Obama administration is fighting a federal judge's order requiring it to explain why the government places US citizens who haven't been convicted of any violent crimes on its no-fly database.
The administration is challenging the demand from US District Judge Anthony Trenga, who is presiding over the Virginia federal court case. In asking Trenga to reconsider his Aug. 6 order, the government responded last week: "Defendants request clarification of the purpose of the requested submission so that defendants may respond appropriately."
Trenga's decision is among a series of setbacks to the government's insistence that any serious discussion about the no-fly list—about how people get on or off it—would amount to a national security breach.
A federal judge in June, for example, ruled that the Department of Homeland Security's method for the public to challenge placement on a no-fly list is unconstitutional. The government was ordered to revise the removal process, which was called "wholly ineffective." And just last month, a government manual on how the authorities place people on the no-fly database—being a terrorist not required—was leaked and published by the Intercept.
The manual describes how somebody can get on the list, which names thousands of individuals. The government refused to acknowledge (PDF) that the manual was leaked.
Trenga hasn't backed down from the government's request for reconsideration and has ordered the Justice Department to provide:
[A]ll documents, and a summary of any testimony, expert or otherwise, that the United States would present at an evidentiary hearing or trial to establish that inclusion on the No Fly List, as applied to United States citizens who are not under indictment or otherwise charged with a crime and who have not been previously convicted of a crime of violence, is necessary, and the least restrictive method available, to ensure the safety of commercial aircraft from threats of terrorism, and that no level of enhanced screening would be adequate for that purpose.
The government is invoking the state secrets privilege and wants Trenga to dismiss a case brought by an Alexandria, Va. man who is a naturalized US citizen. The government says its internal policies for placement on a no-fly list could expose state secrets and therefore should be dismissed in the name of national security. The judge, however, said he would read the materials privately.
The government claims that forking over the materials to the judge is "inappropriate."
"The requested submission would not assist the Court in deciding the pending Motion to Dismiss because it is not an appropriate means to test the scope of the assertion of the State Secrets privilege," the government wrote [PDF] Friday.
The last time the Obama administration invoked the state secrets privilege in a no-fly list case was in 2013. US Attorney Eric Holder told a San Francisco federal judge that the assertion was not to conceal "administrative error" or "embarrassment." But the FBI erroneously placed a Stanford University student on the no-fly list because the agent checked the wrong box on a form.
When the government asserts state secrets—a privilege first upheld by the Supreme Court in a McCarthy era lawsuit—judges usually dismiss a lawsuit against the government.
The dispute concerns Gulet Mohamed, who at the age of 19 was detained in Kuwait in 2011. Mohamed, who has no criminal record, said he was beaten and interrogated by the Kuwaiti government at the urging of US agents. He was eventually allowed to return home to Alexandria to litigate his lawsuit, but is now barred from flying.
http://arstechnica.com/tech-policy/2014/08/feds-balk-at-courts-order-to-explain-no-fly-list-selection-process/
The Obama administration is fighting a federal judge's order requiring it to explain why the government places US citizens who haven't been convicted of any violent crimes on its no-fly database.
The administration is challenging the demand from US District Judge Anthony Trenga, who is presiding over the Virginia federal court case. In asking Trenga to reconsider his Aug. 6 order, the government responded last week: "Defendants request clarification of the purpose of the requested submission so that defendants may respond appropriately."
Trenga's decision is among a series of setbacks to the government's insistence that any serious discussion about the no-fly list—about how people get on or off it—would amount to a national security breach.
A federal judge in June, for example, ruled that the Department of Homeland Security's method for the public to challenge placement on a no-fly list is unconstitutional. The government was ordered to revise the removal process, which was called "wholly ineffective." And just last month, a government manual on how the authorities place people on the no-fly database—being a terrorist not required—was leaked and published by the Intercept.
The manual describes how somebody can get on the list, which names thousands of individuals. The government refused to acknowledge (PDF) that the manual was leaked.
Trenga hasn't backed down from the government's request for reconsideration and has ordered the Justice Department to provide:
[A]ll documents, and a summary of any testimony, expert or otherwise, that the United States would present at an evidentiary hearing or trial to establish that inclusion on the No Fly List, as applied to United States citizens who are not under indictment or otherwise charged with a crime and who have not been previously convicted of a crime of violence, is necessary, and the least restrictive method available, to ensure the safety of commercial aircraft from threats of terrorism, and that no level of enhanced screening would be adequate for that purpose.
The government is invoking the state secrets privilege and wants Trenga to dismiss a case brought by an Alexandria, Va. man who is a naturalized US citizen. The government says its internal policies for placement on a no-fly list could expose state secrets and therefore should be dismissed in the name of national security. The judge, however, said he would read the materials privately.
The government claims that forking over the materials to the judge is "inappropriate."
"The requested submission would not assist the Court in deciding the pending Motion to Dismiss because it is not an appropriate means to test the scope of the assertion of the State Secrets privilege," the government wrote [PDF] Friday.
The last time the Obama administration invoked the state secrets privilege in a no-fly list case was in 2013. US Attorney Eric Holder told a San Francisco federal judge that the assertion was not to conceal "administrative error" or "embarrassment." But the FBI erroneously placed a Stanford University student on the no-fly list because the agent checked the wrong box on a form.
When the government asserts state secrets—a privilege first upheld by the Supreme Court in a McCarthy era lawsuit—judges usually dismiss a lawsuit against the government.
The dispute concerns Gulet Mohamed, who at the age of 19 was detained in Kuwait in 2011. Mohamed, who has no criminal record, said he was beaten and interrogated by the Kuwaiti government at the urging of US agents. He was eventually allowed to return home to Alexandria to litigate his lawsuit, but is now barred from flying.
http://arstechnica.com/tech-policy/2014/08/feds-balk-at-courts-order-to-explain-no-fly-list-selection-process/