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In a stinging rebuke to the U.S. Departments of Justice and Homeland Security, Judge Anna J. Brown, U.S. District Court judge for the District of Oregon, has reaffirmed our right to travel by air, at least internationally, and underscored our rights to reputation and due process.

Latif , et al., v. Holder was filed by the American Civil Liberties Union on behalf of 13 citizens and permanent residents who have been stranded by being placed on the no-fly list, often mid-trip when they are already overseas.  In several cases these actions were clearly attempts by the FBI to intimidate them into becoming informants against their will, despite a lack of any evidence of criminal involvement on the part of the persons stranded.  In a number of cases they are now separated from family members, including spouses and children, because they are prevented from leaving the U.S. by air, and the U.S. will not grant visas for their loved ones to join them here.  In at least one case a stranded American managed to arrange passage by cargo ship only to have U.S. Customs and Immigration personnel intimidate the captain into denying him passage, which belies the government’s claim that one can still travel by means other than air.

Other than a modern interpretation of Kent v. Dulles, which any reasonable reader would make, there is nothing novel or “landmark” about Latif v. Holder.  The decision is a sound work of jurisprudence that relies on existing and well-established precedents.  Kent v. Dulles was decided by the U.S. Supreme Court in 1958 and reaffirmed the right to travel internationally at a time when almost all international travel was by ocean liners, most of which had been scrapped by the late 1960’s in favor of air travel.  The right to travel, which the Supreme Court soundly underscored in 1958, today can only be accomplished by air.  Was that right thus extinguished?  I think not, and Judge Anna J. Brown agrees:

As noted by the Ninth Circuit, “the [Supreme] Court has consistently treated the right to international travel as a liberty interest that is protected by the Due Process Clause of the Fifth Amendment.”  DeNieva v. Reyes, 966 F.2d 480, 485 (9th Cir. 1992)(emphasis added)(citing Aptheker v. Sec’y of State, 378 U.S. 500, 505-08 (1964), and Califano v. Aznavorian, 439 U.S. 170, 176 (1978)). In DeNieva the plaintiff brought a claim under 42 U.S.C. § 1983 after her passport was seized by government officials. The Ninth Circuit held the plaintiff had a right under the Fifth Amendment to travel internationally, and that right could not be deprived without a post-deprivation hearing. 966 F.2d. at 485.

Although there are perhaps viable alternatives to flying for domestic travel within the continental United States such as traveling by car or train, the Court disagrees with Defendants’ contention that international air travel is a mere convenience in light of the realities of our modern world. Such an argument ignores the numerous reasons an individual may have for wanting or needing to travel overseas quickly such as for the birth of a child, the death of a loved one, a business opportunity, or a religious obligation.  (Latif, et al., v. Holder)

Besides ruling in the defendants’ favor with regard to the rights to travel and to due process, the trial judge also rendered judgment in favor of their “stigma plus” claim.  “Stigma plus” is a doctrine that allows one to seek relief for government defamation (being labeled as a “terrorist”, in this case), if one is also denied some property interest or right as a result of that defamation:

Plaintiffs also assert the first factor under Mathews has been satisfied because Plaintiffs have been stigmatized “in conjunction with their right to travel on the same terms as other travelers.” First Am. Compl. ¶ 141.

Under the “stigma-plus” doctrine, the Supreme Court has recognized a constitutionally-protected interest in “a person’s good name, reputation, honor, or integrity.”  Wisconsin v. Constantineau , 400 U.S. 433, 437 (U.S. 1971). “To prevail on a claim under the stigma-plus doctrine, Plaintiffs must show (1) public disclosure of a stigmatizing statement by the government, the accuracy of which is contested; plus (2) the denial of some more tangible interest such as employment, or the alteration of a right or status recognized by state law.” (Latif, et al., v. Holder)

At this point Judge Anna J. Brown has ruled in part in favor of the plaintiffs (the citizens and permanent residents who have been prevented from traveling) and in part against the defendants (government), and has withheld judgment on remaining motions due to apparent stonewalling on the part of the government:

The Court also directs the parties to confer and to submit a joint status report no later than September 9, 2013, setting out their recommendation as to the most effective process to better develop the record so that the Court may complete its consideration of the still-pending Motions (#91, #85) and specifically setting out any additional issues that the partiesbelieve need to be resolved on the existing Cross-Motions in light of the Court’s rulings herein.  (Latif, et al., v. Holder)

In other words the defendants (government) will need to quit stonewalling and provide the information required to resolve the remainder of the case.  The judge has already shown a tendency to make assumptions on behalf of the plaintiffs when the government is non-responsive.  There likely will be further rulings in the defendants’ favor if the government’s intransigence continues.

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