Federal District Court: Warantless surveillance ok, No-fly-list not ok

In two major Federal District Court rulings addressing trade-offs between government powers and individual rights, judges in Oregon on Tuesday upheld a 2008 law permitting warrantless surveillance but struck down a key aspect of the so-called no-fly list that blocks people suspected of terrorism ties from boarding planes. http://www.nytimes.com/2014/06/25/us/federal-judges-in-oregon-uphold-warrentless-surveillance-strike-down-no-fly-list-provision.html?ref=us&_r=0
The rulings were handed down on Tuesday afternoon at the same federal courthouse in Portland. Each resonated with the recurring theme of how to balance civil liberties and national security. But the outcomes, each of which may be appealed, cut in opposite directions.
In the surveillance case, Judge Garr M. King ruled in a 56-page opinion that a 2008 law, the FISA Amendments Act, is constitutional. He declined to throw out the conviction of Mohamed Mohamud for trying to bomb a Christmas tree-lighting ceremony in Portland in 2010, in what turned out to be a sting operation by the F.B.I.
The constitutionality of the 2008 law had never been tested in court before Judge King’s ruling. It allows the government to collect the international communications of Americans without warrants if they are to, from or about a noncitizen abroad who has been targeted for intelligence collection.
Late last year, after Mr. Mohamud was convicted but before his sentencing, the Justice Department  belatedly informed him that the evidence against him had included information derived from warrantless surveillance collected under that law, which legalized the Bush administration’s National Security Agency surveillance program.
In 2013, the Supreme Court rejected a challenge to the surveillance law without examining the constitutional issues because, it found, the plaintiffs could not prove they had been wiretapped. But a Justice Department policy was preventing defendants who faced evidence derived from such surveillance, and so had legal standing, from receiving notice. The department changed that policy last summer after an internal dispute.
A defendant in Colorado was the first to receive such notice, but a judge has not yet ruled on his challenge to the surveillance. Mr. Mohamud, the second defendant to receive notice, asked to have his trial thrown out. Judge King declined to do so and upheld the 2008 law, saying it complied with the Fourth Amendment.
Judge King said the surveillance was reasonable because of the need to protect national security, because Americans’ communications are intercepted incidentally when the targets of eavesdropping are noncitizens abroad, and because of various rules for protecting Americans’ private information collected under a provision of the law called Section 702.
“Based on the statutory protections, I conclude the government’s compelling interest in protecting national security outweighs the intrusion of Section 702 surveillance on an individual’s privacy,” Judge King wrote. “Accordingly, Section 702, as applied to defendant, is reasonable under the Fourth Amendment.”
Marc Raimondi, a Justice Department spokesman, said, “We are pleased with the decision.” Civil liberties groups deplored it.
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But reactions went the other way to the second major ruling on Tuesday, which struck down the no-fly list procedures. The federal government bars people on the list from boarding flights in the United States or flying through American airspace.
That case was brought by 13 people who had been prevented from boarding flights and had submitted requests to the Department of Homeland Security’s Traveler Redress Inquiry Program without success.
In a 65-page ruling, Judge Anna J. Brown of Federal District Court for the District of Oregon said that the procedures for reviewing whether it was appropriate to put someone’s name on the list were inadequate and violated Americans’ Fifth Amendment right to due process.
Judge Brown wrote that the redress procedures were “wholly ineffective” and created a “high risk of erroneous deprivation” of the plaintiffs’ rights, leaving them potentially “doomed to indefinite placement on the no-fly list,” in violation of the Fifth Amendment.
“The absence of any meaningful procedures to afford plaintiffs the opportunity to contest their placement on the no-fly list violates plaintiffs’ rights to procedural due process,” she wrote.
Under the ruling, the Department of Homeland Security must give the plaintiffs more information about why they are on the list and an opportunity to present evidence to rebut the issues. It must also come up with a new mechanism generally for allowing people to challenge their inclusion.
A Justice Department spokeswoman said only that the government was “reviewing the decision.”
Hina Shamsi, an American Civil Liberties Union lawyer who helped argue the case, hailed the ruling, saying it would help her clients and “other people wrongly stuck on the no-fly list, with the promise of a way out from a Kafkaesque bureaucracy causing them no end of grief and hardships.”
“For years, in the name of national security, the government has argued for blanket secrecy and judicial deference to its profoundly unfair no-fly list procedures,” Ms. Shamsi said, “and those arguments have now been resoundingly rejected by the court.”

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