Air travel is a right

Ladies and gentlemen, now we have it. On December 20, 2012, Judge William Alsup ruled against the TSA.

But before you get your hopes up, this is a case about the No-Fly List: Rahinah Ibrahim v. Department of Homeland Security et al. (The case is covered in layman’s terms here.)

The Department of Justice had filed for the following:

(1) Dismiss the case. DENIED

(2) Allow a Federal agent to fly to California to show certain documents to the Judge, in camera (that means in chambers), without leaving any copies and without sharing the information with defendant’s counsel. DENIED

(3) Stay discovery. DENIED

The Judge also sent a strong message as to the hurdle the DOJ would have to overcome regarding air travel:

“The right to travel here and abroad is an important constitutional right. To deny this right to a citizen . . . based on inaccurate information without an effective means of redress would unconstitutionally burden the right to travel. While the Constitution does not ordinarily agree the right to travel by any particular form of transportation, given that other forms of travel usually remain possible, the fact remains that for international travel, air transport in these modern times is practically the only form of transportation, travel by ship being prohibitively expensive or so it will be presumed at the pleading stage.”

This isn’t exactly new, as so eloquently stated in Kent v. Dulles (1958):

“The right to travel is a part of the ‘liberty’ of which the citizen cannot be deprived without due process of law under the Fifth Amendment. So much is conceded by the Solicitor General. In Anglo-Saxon law, that right was emerging at least as early as the Magna Carta. Three Human Rights in the Constitution of 1787 (1956), 171-181, 187 et seq., shows how deeply engrained in our history this freedom of movement is. Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. Travel abroad, like travel within the country, may be necessary for a livelihood. It may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values.”

So there, DHS. So there, everybody else: the constitutional right to travel by air exists . . . even if (at the moment) it’s being narrowly interpreted by the latest case to be limited to international travel.

  • muhammadmajid

    Different people really get the wrong idea about travel .Freedom of movement as the completely
    distinct i think my idea travel is impotent of every body for bright future.
    Travel News US

  • Douglas Hassell

    Wow. Do so many people really misconstrue the idea, “freedom of movement” as the wholly unrelated “freedom from scrutiny”? Even the Founding Fathers had leery eyes for any traitors in their midst, which is the principal motivation of domestic security. There weren’t even one million Americans in the colones back then. We’re living in a country of 400 million fellow Americans with millions more foreign nationals traveling here every year; do you know who among them means to do us harm? So, don’t bring this judicial case as an argument for relaxed security procedures, it’s a civil-privileges peg in a human-rights hole. Freedom of movement means you can go outside your front door, down the street, or across state lines without reprisal, but when you get close enough to a multi-million dollar machine with enough volatile substances to level buildings, we (America) are going to have leery eyes for anyone that is not just along for the ride. You wanna hate? Hate on those that really mean to do us harm, not those among us who are just doing their jobs.

    • Mr. Hassell, how sad that you think you are surrounded by criminals. And that you and your fellow passengers should be treated as such.

      As for “traitors in our midst,” sounds like you would’ve been perfectly happy in East Germany. The Stasi had that neighbor-spying-on-neighbor thing down to a science. Now the U.S. is trying to replicate it.

    • Susan Richart

      I would ask Mr. Hassell how he can find it in him to leave his house in the morning with all those evil-doers waiting outside his door.

      What about the Dorners, the Lanzas, your neighborhood psycho, your local out-of-control cops, Mr. Hassell? People such as those cited have harmed far, far more citizens than any terrorists or group of terrorists over the last 11 years.

      • Susan Richart

        Hey, Douglas Hassell, I see that you used to work for the TSA – no wonder your thinking is so screwed up.

  • Kasha Dubinska

    Governments control people through scare tactics, all over the world.
    Lets pull together and put a stop to them. Stop watching mass media for a start.

  • yachtboy

    Until the flying public, both individuals and corporate interests put pressure on their congressman and senators, the Gestapo/KGB/Stasi like agency of thugs known as TSA will get their way. The TSA needs to be reigned in and better supervised. As long as they have they can detain you long enough to miss your flight, there is little most people will do. Americans have let their freedom slip away,inch by inch to the government and don nothing about it. Evidently we don’t deserve it.

  • Jack

    Freedom of movement is a right. Period. Whether we walk on water or fly through the air. But the rule of law is slowly being undermined in the U.S., the DHS is expanding to the bus stations, and the highways, the sports arenas and the schools. The DHS is not dying unfortunately. Mr. Obama, the supposed savior, has requested $68.9 billion for 2013, a 1.3 percent increase for the DHS.

  • LFH0

    This one judge at the district court who, in deciding a motion, has presumed that international travel by ship is prohibitively expensive and that the only means by which a constitutional right to travel internationally may be accomplished is by air. Even if this decision were to be followed elsewhere, this presumption could be overcome in many circumstances (e.g., one could fly between Malaysia and, say, Mexico, and travel internationally between Mexico and the United States on foot).

    I don’t read here a decision which states that there is a constitutional right to fly. At most I read a decision that might be read as providing for a rebuttable presumption that the only means of being able to exercise the constitutional right to travel internationally is by air.

    • 1amWendy

      Without undue burden – that is key.

    • 1amWendy

      LOL the more I think about it, the more I realize you rather missed what this Judge was saying. This Judge VERY clearly signaled to the DOJ that his going-in position is that air is the only feasible method for travel over water, i.e., international flights. He said that point blank. And last I checked, opponents rebutted each other, not the presiding judge.

      • LFH0

        It is, of course, a signal from this judge to the Department of Justice as to how he sees things in this particular case. But as to precedential value, it might be persuasive but it won’t be binding absent appellate review. And I’m not persuaded that the reasoning would be accepted by the appellate court, in large part because I don’t think travel by sea is as impracticable as this judge suggests. I gave up travel by commercial aviation over 10 years ago, yet I continue to travel overseas without undue burden. The validity of the presumption seems weak to me.

        (It is true that a party to litigation will argue against a “rebuttable presumption.” However, such presumptions are created either by statute, regulation, or case law. In the latter case, it is a judge–or a panel of judges–which find such presumptions.)

        • There is no difference if traveling by air, foot, bicycle, or train. It is “travel”. The judge in this case is evaluating the 5th amendment right to travel (travel is part of ‘liberty’ as defined in Kent vs Dulles) vs the TSA “No Fly List” which is a subset of the DHS Terrorism Watch List.

          I should add there has been no due process through a judicial process where a restriction on travel – such as one might have in a restraining order , or a restriction on where you can live if you are a sex offender [not within X feet of a school in some states] – has been lawfully implemented.

          In this case, the judge called their BS. Frankly, I don’t care if ships are equally fast or if trains are equally fast. It doesn’t matter. There is no difference if the government had a “no walk” list because you might “walk” somewhere and commit a crime.

          Any legal justification for restricting travel by one mode of conveyance is the same for restricting ANY MODE of conveyance….especially absent any coherent explanation or process.

          If someone is that dangerous, they shouldn’t be allowed to walk, drive, swim, or otherwise travel near me.

    • LFH0, here’s another section of Kent v. Dulles that might address your statement:

      “Freedom of movement across frontiers in either direction, and inside
      frontiers as well, was a part of our heritage. Travel abroad, like travel
      within the country, may be necessary for a livelihood. It may be as close to
      the heart of the individual as the choice of what he eats, or wears, or
      reads. Freedom of movement is basic in our scheme of values.”

      As for traveling by ship, you’re right — it’s surprisingly affordable, as I recently discovered. But most people can’t afford the time off, even if they can afford the price. It takes 7 days for the QM2 to cross the Atlantic. As for flying from Malaysia to Mexico and then crossing from Mexico to the U.S. on foot, well, yeah, I guess; but again, that requires a lot of time.

      • Jack

        I’ve paid the prices. Traveling by luxury liners like the QM2 is not “surprisingly affordable” by the majority of Americans who are struggling to make ends meet. And it gets even more difficult thanks to the manufactured fiscal crises. So it is not only a question of having the time.

        • Jack, I understand. I’m talking about for people like me who are lucky enough to afford to fly. Americans who are in trouble can’t afford to fly to Europe either. And I agree that the so-called fiscal crisis is manufactured. Our overlords are gleeful to keep tightening the noose around our necks.

      • Daisiemae

        And how about people that suffer from severe sea sickness? I cannot travel by ship. If I am denied the right to travel by air, then I am denied the right to travel across oceans to Europe, Hawaii, Asia, etc.

        • Daisiemae, you’re right. I’m not arguing against the right to travel by air.

    • Daisiemae

      If I drive from New Jersey to Mexico, there will be no time or money left to then fly somewhere else. If I am traveling for work, will my employer give me enough paid leave to drive all that way?

      If I am forced by the federal government to drive to Mexico in order to catch a plane to Malaysia and I am killed by the Mexican drug cartel, is the federal government then responsible for my death because it forced me to go someplace I would never have gone in the first place? Can my family bring a wrongful death suit against the federal government?

  • marilyn

    Waiting at JAX airport for my son’s
    arrival I watched as hundreds passed thru the scanner like sheep or
    zombies…turn, arms up, look straight ahead…for almost 45 mins. that I was
    watching, not one person objected, questioned or chose the alternative pat

    There was even a digital sign informing
    passengers how long the TSA wait was….30 mins or less while I was

    It made me sick to my stomach and I
    realized that this was established as part of the flying experience and was not
    going away in my lifetime.

    We just have to work around

    I’m planning an Amtrak trip on the
    Empire Builder from Cgo to Portland in the Spring.

  • Bob

    WOW – This wasn’t just one Judge it was a panel of Judges. 2-1 ruled against. Next stop is SC, but i doubt the govt wants to push it that far.

  • Susan Richart

    Bit by bit by bit, the TSA is slowly dying. I hope it is a painful death to those who believe that this agency is doing anything useful.

    • Again, I’ll believe it when I see it.

    • Actually, I don’t think they are dying — I think they are gaining power, thanks to the many Americans who docilely and politely hand over their rights. Witness the post here from the other day about VIPR teams that can stop and search anyone on the road. People need to speak up before they wake up and find themselves living in a police state. Entirely, I mean, not just when they travel. You should not be stopped on your way to the grocery store unless there is probable cause — reason to believe your plans are more nefarious than not wanting to run out of milk.

  • It’s about time.