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Government The Courts Transportation United States

Gov't Puts Witness On No Fly List, Then Denies Having Done So 462

Posted by Soulskill
from the you-can-trust-us dept.
cathyreisenwitz sends word of a San Francisco trial in which the U.S. government appears to be manipulating the no-fly list to its advantage. The court case involves a Stanford Ph.D. student who was barred from returning to the U.S. after visiting her native Malaysia. She's one of roughly 700,000 people on the no-fly list. Here's the sketchy part: the woman's eldest daughter, who was born in the U.S. and is a U.S. citizen, was called as a witness for the trial. Unfortunately, she mysteriously found herself on the no-fly list as well, and wasn't able to board a plane to come to the trial. Lawyers for the Department of Justice told the court that she simply missed her plane, but she was able to provide documents from the airline explaining that the Department of Homeland Security was not allowing her to fly.
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Gov't Puts Witness On No Fly List, Then Denies Having Done So

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  • Southwest.. (Score:5, Insightful)

    by Anonymous Coward on Wednesday December 04, 2013 @04:51PM (#45601479)

    You are no longer free to move about the country.

    • Re:Southwest.. (Score:5, Insightful)

      by TWiTfan (2887093) on Wednesday December 04, 2013 @05:07PM (#45601723)

      Of course you're free to move, citizen. You just need to present the proper papers, which you're not eligible for.

      • Re:Southwest.. (Score:5, Interesting)

        by psergiu (67614) on Wednesday December 04, 2013 @05:11PM (#45601771)

        Papers, Please [papersplea.se].

        • Re:Southwest.. (Score:5, Insightful)

          by alexgieg (948359) <alexgieg@gmail.com> on Wednesday December 04, 2013 @05:24PM (#45601963) Homepage

          I've once read an article by a guy who managed to escape a dictatorship. He said that no country truly appreciates freedom until it's gone through a few decades of fascism and/or of a dictatorship of the proletariat. It seems it's time for the USA to have such an "enlightening" experience. The good side: afterwards things will improve. The bad thing: a restoration usually happens only two or more generations down the line.

          Well, at least your grandchildren will see it.

          • Re:Southwest.. (Score:5, Insightful)

            by Runaway1956 (1322357) on Wednesday December 04, 2013 @09:37PM (#45604331) Homepage Journal

            You are quite the optimist. With today's technology, a locked down population is unlikely to be able to throw of the yoke of tyranny. And, government will be improving on today's technology, of course. Given a few decades of round the clock surveillance, mandatory forced indoctrination in the school system, and enforced thought policing, how are people ever going to regain their freedom?

            If the US falls to tyranny, there will be something equivalent to Europe's Dark Ages. It will be a long, long, LONG time before the pendulum swings back the other way.

  • by Okian Warrior (537106) on Wednesday December 04, 2013 @04:54PM (#45601527) Homepage Journal

    Flying is a privilege, not a right. She can just drive to court.

    It's not like we don't have interstate highways in every state in the union [wikipedia.org].

    • by Lucky_Pierre (175635) on Wednesday December 04, 2013 @04:55PM (#45601543)

      If the jackboot fits, wear it.

    • by Anonymous Coward on Wednesday December 04, 2013 @04:59PM (#45601601)

      Driving is a privilege, not a right. You can see where this leads...

    • by Anonymous Coward on Wednesday December 04, 2013 @05:01PM (#45601629)

      Freedom of movement is an important right we have. It's been infringed upon heavily in recent years.
       
        What's next? Free speech zones?... oh.

    • by Huntr (951770) on Wednesday December 04, 2013 @05:04PM (#45601683)
      I'll tell you what's a right: due process. The govt appears to be denying that to a witness in a trial for their own benefit. Let that sink in a sec and decide if the issue here is whether or not she can drive to court.
      • by mjwx (966435) on Wednesday December 04, 2013 @09:11PM (#45604129)

        I'll tell you what's a right: due process. The govt appears to be denying that to a witness in a trial for their own benefit. Let that sink in a sec and decide if the issue here is whether or not she can drive to court.

        This,

        Driving is not an inalienable or natural right, it's a privilege.

        What the US govt did wrong was interfere with this persons "freedom of movement" as we call it in Australia which allows a citizen free and unfettered movement between all states and territories as well as the right to leave and re-enter the country at any time. The problem here is that:
        1) The no-fly list does not just apply to air travel but also to other forms of travel. She was not simply denied flying, she was denied entry into the United States (as a US citizen as well).
        2) The person in question purchased a legal ticket for travel, had all the required documentation and had committed no crimes or was even accused of committing a crime in either the destination or the origin of the flight.

        This is completely different to holding a drivers license, which is a privilege that people abuse far too often.

    • Yes; she can hop on her submersible car and drive from MALAYSIA to SAN FRANCISCO.

    • by Okian Warrior (537106) on Wednesday December 04, 2013 @05:11PM (#45601767) Homepage Journal

      Flying is a privilege, not a right. She can just drive to court.

      It's not like we don't have interstate highways in every state in the union [wikipedia.org].

      For those who hadn't noticed, I'm referring to an INTERstate road on an island, while also parodying a government legal rationalization and general ignorance of geography and logic by the US.

      For those who still can't figure it out... yes, it's humor.

      For those who did figure it out... check out all the people here who couldn't figure this out!

    • You can keep your flight plan, you can keep your insurance, you can leave your hat on.
      Trust us.

    • by Mistakill (965922)

      Flying is a privilege, not a right. She can just drive to court.

      It's not like we don't have interstate highways in every state in the union [wikipedia.org].

      Maybe should could have driven there, or taken a bus/train, except she wasn't informed until she was trying to board the plane... lets say you had a court date in NY and were in Cali... you get told at the ticket counter you cant fly... think you will make it via driving/bus/train? And they lied about it, in court...

    • hard to drive to SFO from Malaysia.

    • Yes, I got the parody, but the horrible thing is that I've seen the same sentiment for real. A major newspaper editorialized that people who didn't want to go through the TSA porn scanners could just take the bus or the train. The notion that there are places unreachable by bus or train completely escaped them.

    • Re:Just drive there (Score:4, Interesting)

      by ArbitraryName (3391191) on Wednesday December 04, 2013 @05:32PM (#45602131)
      I really have to congratulate you. Reading the long string of replies from idiots who didn't follow the link and/or get the joke is hilarious.
      • by Okian Warrior (537106) on Wednesday December 04, 2013 @06:00PM (#45602517) Homepage Journal

        I really have to congratulate you. Reading the long string of replies from idiots who didn't follow the link and/or get the joke is hilarious.

        It's like I touched the third rail of the internet. I am astonished.

    • Re: (Score:3, Insightful)

      by mi (197448)

      It is even worse than that. Not just flying and driving are considered a privilege, even the things explicitly enumerated in the Constitution as rights are being treated as privileges. Gun-ownership is the most obvious example — even in the "gun-friendly" locales (like Texas), keeping and bearing requires a license. And even if the Executive branch "shall issue" such licenses, it can also withdraw (or not renew) them — without bothering with the Judiciary.

      Heck, even "performing in costume" requ [nymag.com]

    • by DarkOx (621550) on Wednesday December 04, 2013 @05:48PM (#45602369) Journal

      I know your comment was intended to be funny but I think this is serious issue; one our society and our courts have gotten wrong for a long time now.

      One of our most basic enumerated rights is that of assembly. In order to assemble that requires being able to go to where the assembly is happening. The right to travel ( at least within the jurisdiction of the United States ) is strongly implied by the first Amendment to the Constitution.

      As a practical matter in the modern world flying and even more so driving essential to travel. Having established the right to travel, I think it can and should be argued that flying and driving are in fact not privileges but rights. Rights which cannot and should not be denied anyone but upon conviction of crime.

      Which means that lots of things like vehicle check points, and insurance requirements are on shake legal ground too.

      • Yes, and a Federal Judge just ruled this way (that air travel is a constitutional right because it's the common means of travel). 9th Circuit, I think, then remanded to the lower court to proceed. Check the recent Democracy Now! segment on this case for details.

  • I'm readying popcorn (Score:5, Informative)

    by MiKom (866143) on Wednesday December 04, 2013 @04:57PM (#45601553) Journal
    Judge presiding over this case - William Alsup. The one who threw away Oracle Java APIs lawsuit agains Google.
    • No popcorn yet (Score:5, Informative)

      by Okian Warrior (537106) on Wednesday December 04, 2013 @05:01PM (#45601635) Homepage Journal

      Don't get out your popcorn just yet. From the article:

      But Judge Alsup noted that the document with the DHS instructions to the airline was not supported by any sworn testimony or evidence of its authenticity. “You have to have a sworn record before I can do something dramatic.” Judge Alsup said he would consider the document if and when Ms. Mustafa Kamal arrives in San Francisco and can testify as to its authenticity.

      Ms. Pipkin said that Ms. Mustafa Kamal was reluctant to spend the money on another airline ticket to San Francisco without some assurance that this time she would be allowed to board her flight.

      “Get her on an airplane and get her here,” Judge Alsup responded. “She’s a U.S. citizen. She doesn’t need a visa. I’m not going to believe that she can’t get on a plane until she tries again. ” And Mr Freeborne, with disingenuous faux-solicitude, claimed that the government is “willing to do whatever we can to facilitate” Ms. Mustafa Kamal’s ability to board a flight to the U.S.

      • by jandrese (485)

        “Get her on an airplane and get her here,” Judge Alsup responded. “She’s a U.S. citizen. She doesn’t need a visa. I’m not going to believe that she can’t get on a plane until she tries again. ”

        Um, isn't this kind of the point of a No-Fly list? It doesn't matter if you are a US Citizen, if you're on the list you don't get to fly. The alternatives are either finding a boat or chartering a private flight I think. I suspect that she will be able to board the

        • Re:No popcorn yet (Score:5, Informative)

          by jfengel (409917) on Wednesday December 04, 2013 @05:27PM (#45602033) Homepage Journal

          He's saying that he doesn't believe the contention that she is on the no-fly list. The government denies that she's on a no-fly list. The document that claims she was comes from an airline, not from the DHS itself, so it's possible that the reason she was denied boarding comes from further down the line.

          She's reluctant to try again, since the flight isn't cheap (and they didn't refund her money). The airline is blaming DHS, and that's the part I'm not sure how they'd go about proving. They'd need to prove that the order they claim came from the DHS actually came from the DHS. I don't know what channel the message was delivered to them, so I don't know how they'd authenticate it, and the fact that DHS usually operates in secrecy makes it that much harder.

          If I read it correctly, she doesn't have to try again, she simply needs to get Malaysia Airlines to cough up their source for the document they provided. I've got no idea how easy that would be.

          • Re: (Score:3, Interesting)

            by rahvin112 (446269)

            It's illegal for the airlines to disclose if someone is on the no fly list, let alone why. And depending on the airline DHS might not even tell them why they are denying them. That's the biggest injustice of the whole thing. You can't know if you are on it, you can't challenge being on it and no one in the airline industry is allowed to assist you in any way.

            The judge likely doesn't believe it because he's not aware of how unjust the no-fly lists are and like most American's he's naive enough to believe tha

          • Re:No popcorn yet (Score:4, Insightful)

            by Gregory Arenius (1105327) on Wednesday December 04, 2013 @07:10PM (#45603281)

            What I would like to know is how its legal for the airline to not refund her money. She paid for a ticket to SF, attempted to board the airplane, and was told to fuck off. I'd be on the line with my credit card company getting that charged back in a heartbeat.

      • Did the airline refund her the price of the ticket and all associated transportation costs (hotel, etc?) No? Nice. If she paid for the ticket, and she's on a no-fly list, who reimburses her for the services not rendered?

        • by Sique (173459)
          Why should the airline? It's not their fault that they weren't able to provide the service.
      • Re:No popcorn yet (Score:5, Interesting)

        by StinkiePhish (891084) on Wednesday December 04, 2013 @05:32PM (#45602119)
        He has to do this in order to allow the document into evidence. Once it is authenticated and otherwise admissible, he can rely on it for any decision he will make. If he decided to go rogue and not follow the Federal Rules of Evidence, then the government could easily prevail on any appeal. In other words, the judge isn't being difficult to be difficult; he is doing it because he does not want to be overturned.
      • Re:No popcorn yet (Score:5, Insightful)

        by VortexCortex (1117377) <VortexCortex@pro ... ICAGOcom minus c> on Wednesday December 04, 2013 @05:46PM (#45602341)

        "You have to have a sworn record before I can do something dramatic." Judge Alsup said he would consider the document if and when Ms. Mustafa Kamal arrives in San Francisco and can testify as to its authenticity.

        FTFNFLA: [wikipedia.org]

        A "false positive" occurs when a passenger who is not on the No Fly List has a name that matches or is similar to a name on the list. False positive passengers will not be allowed to board a flight unless they can differentiate themselves from the actual person on the list, usually by presenting ID showing their middle name or date of birth. In some cases, false positive passengers have been denied boarding or have missed flights because they could not easily prove that they were not the person on the No Fly List.

        When an airline ticket is purchased, the reservation system uses software to compare the passenger's name against the No Fly List. If the name matches, or is similar to a name on the No Fly List, a restriction is placed in their reservation that prevents them from being issued a boarding pass until the airline has determined whether or not they are the actual person whose name is on the No Fly List.

        In order for a citizen to comply with the laws it is essential that they be allowed to know the laws that apply to them. A restriction on flying, driving or status as a prisoner under arrest must be public information available to the citizens that such rules affect. The citizens can not protect themselves from secret rules they know nothing about. The system should have notified her at purchase that she was subject to a law which could require her facing additional government scrutiny. Judge Alsup should subpoena the no fly list as of the time Kamal purchased the airline ticket, and fucking check it himself -- He can write a Java range check program, so he can Ctrl+F a partial name match, or even look at the matching algorithm in use and see the evidence for himself.

        IMO, he is right in desiring a sworn testimony of the wronged party before taking action on their behalf -- A higher court may throw out such actions without at least a party claiming damage. However, the government is NOT allowed to withhold evidence. The no-fly list is evidence. They're not allowed to tamper with witnesses either. The list may no longer contain her name, but it very well may have. If the witness can not get on the plane to fly to court then how in the flying fuck can they give their sworn testimony? The court wants the witness, they should pay the fucking air fare -- at least give a voucher redeemable for an equivalent to their mile-high club. The government created the damn problem in the first place, they're the ones who should have a taste of their own invasive inspection medicine.

        In other words: If citizens should be assumed innocent until proven guilty -- The laws themselves should be assumed guilty until proven innocent.

      • Re:No popcorn yet (Score:5, Insightful)

        by erroneus (253617) on Wednesday December 04, 2013 @05:55PM (#45602467) Homepage

        Alsup is simply being careful as he should be. Not being careful opens doors for appeals which he seeks to avoid.

  • by Thud457 (234763) on Wednesday December 04, 2013 @04:59PM (#45601595) Homepage Journal
    Too much of this BS going on these days to be merely negligence , ignorance and incompetence.
    Yeah, the NSA would never abuse all that personal data it's hovering up.
  • Rule of Law (Score:4, Insightful)

    by Phoenix666 (184391) on Wednesday December 04, 2013 @05:16PM (#45601839)

    We have all learned to our chagrin that this is what has become of the rule of law in our day and age. There is no law, there are no rules. The Constitution no longer applies. There is only rule by fiat. That's a very shaky basis for a society. It will not end well for those promulgating this state of affairs. There are hundreds of millions more of us than there are of them, and we are heavily armed and educated. Everything we need to track down and hang the 1%.

    Chew and digest.

    • Re: (Score:3, Interesting)

      by erroneus (253617)

      This sort of lawlessness and unaccountability is precisely what Michael Cannon testified to congress about. [infowars.com] He asserted that what this leads to no one wants to think about. But that by following this path to its conclusion can end no other way as in all of human history, no one has succeeded in that sort of domination and abuse..

      If you asked me if this was possible 20 years ago, I would have said "Yes, and they have already done it. We have some freedoms, but no real control. We're happy and comfortable

    • How many innocents are you willing to kill in the name of your revolution? At what pre-determined point does the blood flow stop? And is there forgiveness for your enemies, and leniency available? Or are you simply going to kill anyone who is the enemy, extend that to any who don't agree with you, and stop only when there's no one left to shoot at?
      • I can't speak for any other potential freedom fighter, but I can speak for myself, so here are my answers:

        (a) I will never target innocents, and will always make every reasonable effort to protect them from harm, including enemy reprisals.

        (b) The blood flow stops when one side surrenders or everyone on it is deceased. It will likely be mine. We don't have the numbers to win, only to weaken the enemy and reduce its ability to rob, enslave and murder people, and to buy time for future generations of patriot

  • by SuperKendall (25149) on Wednesday December 04, 2013 @05:21PM (#45601917)

    As if we needed yet another reminder, this shows us in all sorts of ways how bad big government really is. Either they abused the list to keep a witness out, or they really COULDN'T tell she was on the list which means the list is an utter unmanageable clusterfuck.

    Either way this is the result when government is allowed to grow too large and too powerful, abuse and mismanagement grow exponentially. Remember this come any election, always vote for the guy that wants to give you less, not more.

  • by korbulon (2792438) on Wednesday December 04, 2013 @05:25PM (#45601981)
    What are laws but the playthings of the rich and powerful to be used and discarded at will? They're like a blanket in a blizzard: designed to keep you warm, but when the storm strikes, utterly useless.
  • 2 years ago ... (Score:4, Insightful)

    by micahraleigh (2600457) on Wednesday December 04, 2013 @05:31PM (#45602109)
    ... I would have called this a fringe conspiracy theory.

    Now I call it the new normal.
  • by reve_etrange (2377702) on Wednesday December 04, 2013 @05:41PM (#45602277)
    He's easily one of the (if not THE) best sitting judge in the country.
  • by dkleinsc (563838) on Wednesday December 04, 2013 @05:49PM (#45602377) Homepage

    Imagine this sequence of events:
    1. A perfectly legal subpoena is issued for someone to appear as a witness, while they're a plane's flight away from home.
    2. Put witness on no-fly list.
    3. Cite witness for contempt of court for failing to appear.

    Boom, you now have a tool for the intelligence community, with the help of a friendly (or blackmailed) judge to put anyone away they like, for any reason they like, at least for a little while. And sure, the contempt citation would eventually be reversed on appeal due to the obvious entrapment issue (the government caused the witness to fail to appear due to its own actions), but by then whoever was targeted has already had their life thoroughly screwed up.

    • Re: (Score:3, Insightful)

      by DRJlaw (946416)

      Imagine this sequence of events:
      1. A perfectly legal subpoena is issued for someone to appear as a witness, while they're a plane's flight away from home.
      2. Put witness on no-fly list.
      3. Cite witness for contempt of court for failing to appear.

      Yeah. No.

      For example: Federal Rule of Civil Procedure 45(b) requires that you serve the person with the subpoena. If you wait until they're away from home, you're going to have a much harder time finding them. Not a complete barrier to the scheme, but ask your lawy

      • by cusco (717999)

        Slightly traumatic

        You obviously have never spent any time in jail, and really obviously have never been in a non-US jail. And you've never followed an international extradition proceeding either, have you? Your "remarkably quick" proceeding rarely happens in less then two weeks, and if the arresting country has any issue at all with any recent US policy it can be stretched out for months.

        Slightly traumatic my ass.

  • by rnturn (11092) on Wednesday December 04, 2013 @05:50PM (#45602391)

    ``Lawyers for the Department of Justice told the court that she simply missed her plane, but she was able to provide documents from the airline explaining that the Department of Homeland Security was not allowing her to fly.''

    What are they teaching lawyers these days? That it's OK to commit perjury? Who wants to see the lying lawyers spend some time in jail? Raise your hand.

  • by Ralph Spoilsport (673134) on Wednesday December 04, 2013 @11:01PM (#45604833) Journal
    FUCK YOU.

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