NOFLY USDC Portland june 21, 2013 part 2

qualitatively different no plus denied without green---a delay stigma mitigated Judge: on aircraft mitigated GVT: as a matter of law---plus attaches at all only to a single mode --Judge: only mode of transportation---assume boat---wrong to suggest---boat---for family medical emergency---ailing grandparents---a person in portland---not a signicant burden? bc maybe in weeks and months and 10, 000's dollars to get to place where family is already dead----not signicantly---maybe get a boat or a rocket ship----accepts this allegation GVT: at the same time it is one interest in travel---one form of travel--

Judge: to call it convenience is marginalizing the argument hugely expensive huge impediment undermines the point of what the plaintiff's are arguing the plaintiff's deserve more credit effectively this record shows no other practical alternative by other means Judge: am i wrong in resisting the argument yr trying to give me im having trouble offfering the solace yr trying to give me thety get to come home eventually GVT: the constitutionality Judge: what if a person needs to travel for a reason we recognize---any human---a death a birth---then trouble

very---expensive ticket GVT: "i am not sure why the person would do it" Judge: hypothetical: time-sensitive: family member ill. traveler denied boarding. yr on noy. person investigates ship options. no transporter rooms from star trek. then buy another ticket. try again. not productive to ask why----if they are denied whouldn't they have a means to resolve the issue---they can plan ve months in advance to get on some freighter GVT: if there is a liberty interest the process is adequate Judge: inextricable sufciency is challenging at most basic level how can there not be a rt GVT: Gilmore: not a rt to air most convenient i dont know of a liberty that attaches bc its most

convenient Judge: it is not reasonable to say it is merely a convenience in this modern time GVT: do they still have the ability to engage in interstate travel Judge: why should any rational court rule nonairtravel as reliable in this era? GVT: was there an alternative means of travel not dispositive for Gilmore Judge: assume there is another method

GVT: look at Prassad washburn naval got back returned with assistance of the GVT not a constitutionally protected liberty to travel.

Judge: 2013 rt to travel give me some case analysis why travel is not a right GVT: on a passport theory whether by air ship or land Judge: passport revocation passport taken away then have process if denying ight is practically as denying passport GVT: predicate not equivalent bc other means of travel Judge: so we're back to that. what is the record of available means of international travel. GVT: docket 91 13 got a boat Prassad commercial vessel denied rt to Belgium. operator made decision based on CBP

Judge: resist urge to interrupt shall i assume interruption of travel

not getting at the associated burden fact of denial of boarding no y list purpose of these motions undisputed GVT: denied boarding immaterial that employees told them the circumstances of that Judge: immateriality of reason why denied boarding may i assume DHS redress process explained GVT: they did not sure who told them how Judge: not controverted denied boarding Gvt: GVT does not conrm whether or not someone is on noy list Judge: that's your choice GVT: coppola declaration

Return after morning break

ACLU lawyer X: Cant afford ticket to wife in Ireland ve ights put in jail in Mexico cant afford ship some places with no travel sail boat to hawaii cant get to Yemen difcult to seperate liability Judge: opportunity to address the problem fundamentally right a right without a rememdy isnt a rt at all told by FBI agent complete set of reasons so they can contest the facts that GVT contends are sufcient application to a standard and a neutral hearing for credibility hamdi they'll say they are not on the list now

and associated with terrorism clients said not true in sworn statements credibility decision not writing on clean slate almost all of 9th circuit feb. 2012 seizure of property---sending money abroad one of the board members in Saudi Arabia---is designated as a terrorist GVT cant give reasons bc of security issues--disclosure would be classied 9th circuit says its unconstitutional at a minimum enough to rebut the factual errors and determine if the charges are applied know why the GVT claims they are a threat to aviation security our clients scared to go to the airport agents swarm them in front of people saying they caught the person about al haramaya--no discussion kind hearts prompt meaningful hearing assessed our deprivation of liberty is much more

their is a oor DHS trip process is way below we are entitled to more than what is present the GVT central litigation position is that they cannot conrm nor deny the NOFLY though it is undisputed four an FBI agent is trying to recruit as informer using incentive of removing the NOFLY listing how many reasons don't even get through security hours---of interrogation preposterous---marine trying to go to seattle to meet DOG-TRAINING client agents swarm him there is a DHS global entry program to escape denial 9117---policy ve reasons criminal or customs history---reason to deny or can't conrm not on a watch list inadmissable to US if you are not one of these things many go thru Global Entry all of them know they are not on the Global Entry Program.

notion that cant conrm or deny---due to this program conrms not on NOFLY listy property cases---al hermaya DC national pre-notice designation geet---property seizures INS relevant to statute and regulation to criteria not a natsec case alhermaya----applicable GVT is stretching to support ZERO NOTICE can't shut off power expel from school without notice Hunt is a Foia case of statute Jiffrey about airline pilots abroad not in US for years requires some notice enough to have reasons to clear up factual mistakes ot see why the GVT thinks is true whatever legal standard the GVT is applying Miss Simian re auditing process---whatever the situation---as a matter of law it produces air---requires circuit---both natsec ---more one side hard pressed---see jud review of judicial ----what do we get to put in the record---stmt of

reasons---hearing with a neutral dec. maker has to be a hearing where people testify deneava decision there on ninth circuit

permitted without any hearing---whatsoever---never get to hear what is against you any judge---who is actually neutral---no opp to make those stmts as i said---kind surely---last thing in particular--prob fm classied info so the GVT says---two reasons why this is all impossible one thst they cant conf. or deny the other: any process: any more : will affect disclosure of classied info.

we dont even know what these problems are. a shame not to afford them re Hypothetical concern of classied info which there isnt

the other particular alharamayan ---classied info should be dealt with in a particular basis

the ninth circuit---the last line in the opinion---re sensitive

classied procedures act (CPA) Judge: statutory criminal confront accuser obviously cumbersome all travelers---much larger than subset of people ever accused via classied info neednt worry that classied info in crim proceedings--not need to reconstruct jud. process that actually exist 50 min. left with respect to ACLU atty X: (Arulanantham?) if ct determines today with ... contours of any ruling you make GVT will have to conform create an administrative ruling these 13 people: want relief to them:

Judge: not a class action, not broader than these 13 ACLU: if GVT doesnt want to turn info y on US Air Carrier: put air marshall on plane as if impossible to provide a fair hearing when faced with preliminary injunction rt of clients to come home Judge: thank you Ms Simian via telephone Constitution Project as Amicus: Constitutional Rights Watch Lists and NoFly security Judge: slower and more distinctly Simian: The Constitution Project: sometimes appropriate but when in error there needs to be a means to correct the type of error in this case cited by this defendent second point not give rise to the National Security concerns alleged by defendent GVT

noy data in terrorist traing---grossly inaccurate---risk of overinclusion due to error---different than similar biographic info creating problem. mis-ID is a mistake of insufcient evidence---recent development secure ight GAO report 2010---neither deal with misID type of problem goal: make it easier for matches. by collecting Biodata and computer algorithms for travelers---irrelevant for people already on NOFLY list the hold watch nominations attempted northwest 253---underinclusion---not placed on list so then overinclusion results overarching abu talib terrorist center---agencies about increasing volumes of informationa dn timely processing

1000's of individuals upgraded from terrorist screening to NOFLY NOFLY 3 doubled and selectee list increased some individuals upgraded based on being from a certain country the gvt wide impact or how citizens were being affected increased risk of error report did not assist with overinclusion problem or previous audit problems audit by DOJ audit of 2009 FBI nomination practice to terrorist screening and noy. DOJ found FBI failed to update or remove those required to be removed. The Individuals general lack of understanding in FBI agents of removal process detailed NOFLY inaccurracies one time no y list somehwere btw 20-38% should not be on records at all records on NOFLY that should not be there the procedures used

for inclusion alarmingly inacurrate only certain types of errors process took 6 months or more not updated daily for accuracy plaintiffs: as a matter of law risk for error too high nothing disputing this from defendents not provides the two most basic elements of due process notice of reasons without adequate notice dont have chance to rebut inferences errors both of these two core elements of due process briey the constitution project individuals could undermine detrimental to national security overly broad---ever conrm or deny even after denied boarding cited northern district court

reversed on unrelated grounds identical natsec concerns each and every one concerns do not apply post-notice not a single natsec concern consistent with natsec purpose notice for the factual basis raising natsec concerns sensitive info constitution process foreclose cases v. case by case in protecting classied info by wide range of cts tools auth and expertise urge ct to nd NO FLY as deprivation as matter of law and fact so americans in error on noy are not denied DUE PROCESS GVT approaches the stand

GVT remedy phase these questions deserve to be adressed what GVT interest essential that plaintiff's own consequences of what they are asking for whether process offered now is appropriate or whether satised complete reasons remove from NOFLY Judge: if GVT det. no longer necessary, GVT could remove a person. as i understand that removal would not be disclosed. GVT: if the GVT removes from the NOFLY JUDGE: the only way to nd out is to buy a ticket and try to make it thru GVT: if the gvt is required to disclose reasons for listing if GVT does not want to disclose---they could remove them from the list---the GVT would have to undertake extraordinary proceedings---to undertake---to assign--tremendously burdensome Judge: have air marshall accompany

Judge: premise that the list is appropriate without other serious application to permit the interest we do this quite regularly people get extraordinary an assigned marshall GVT: what we are talking about individuals alleging they are put on the NOFLY there is a process avail to those allegedly denied ight under this disclose why, or remove them rebalancing how it is best Judge: is it correct to assume all NOFLY reasons are classied person does not get on list as matter of classied data GVT: really signicant here there is no greater interest greater than the sec. of the nation to protect air travel an issue of natsec GVT's methods how to admin a system due signicant deference from the courts Judge: remind me what agency or what part of the

GVT developed this system GVT: DHS trip by homeland sec. as req. by Congress by statute req. DHS to est. a timely and fair process Judge: is there Congressional Approval GVT: congress has done nothing since 2004 or 2007 enactment Judge: there has not been any congressional study or review of implement GVT: TSC Healy appeared in hearings they OIGS and GAO reports not accurate to suggest No Oversight take pt seriously DHS process known. not secret. Judge: tho not conf. or denied GVT: culminates in Judicial Review Judge:

What is it an appellate court would review

GVT: if individ is unhappy with denial---then submit a petition for review---then court would receive record--if not on NOFLY then short record Judge: try second denial---no process--what would appellate ct have GVT: record of appropriate detainment to acct of appeals in camera---not under CPA take ex parte and in camera info an inherent authority Judge: Court bring us yr ex parte sealed record ex parte sealed record without benet of advocacy on part of person affected GVT: im not sure plaintiffs would be satised with this Judge: im not sure a court would be satised with this evaluate as an unchallenged assertion of true facts inclusion on no y list

GVT: that is a procedure in meridian private interests impartial district judge independent de novo review and ex parte by ct of appeals substitute procedural jiffrey closely analogous---natsec concerns revocations determined on ex parte review Judge: so is the defendent's position they should appeal in local GVT: i would never encourage anyone to appeal but yes Judge: they should go to a ct of appeals GVT: for a ct of appeals to review it ex parte culmination of process for someone improperly included on NOFLY list and it satises Due Process Judge: needs to have Trial Ct remanded here when client says have no Due Process

GVT: Procedural here Substantive---exclusive district ct would have jurisdiction in --not in that case here or in Ibrahim for a petition for review for TSA's review re DHS Trip process in Argmant case now GVT has led ex parte record to ct of appeals Judge: DHS trip process inadequate GVT: judicial review whether the process is adequate of course meaningful and fundamental as far as what else what are the governemntal issues notice and complete reasons then signicant status no lus sensitive or classied info

dramatic---weak GVT interests---how to protect air travelers---compared to admin burden and Gitmo habeas connement---private interest much greater than here--fundamental al--haeamaya assets control blocking by nancial institutions whether al haramain deprived of use of property cant pay electric bill without a license quite hard what plaintiffs are asking is for a disclosure of reasons for alleged inclusion on no y case already to ct of appeals miridian says gives due process trenendous due process realize plaintiffss say they have no concern to the GVT the processes GVT has tremendous reasons not to disclose would discourage agency sharing and hurt executive authority in protecting natsec disclosure

privilege and prerog of executive signicant gvt--Judge: doesnt acct for plaintiff's rights this is not just a matter of convenience im quite troubled that unwillingness to acknowledge the security burdens and what the plaintiff's seek tested in a fair process GVT: we have to seperate protected liberty interest Judge: pointing you seem to which to stop at point that GVT has valid important interest and what to do with Plaintiff's right GVT: what is the process: completeley recognize: you could have the liberty interest: the governmental interest is so strong and existing are so strong as to ensure due process Judge: ct of ap GVT: agency, then audit, then DHS trip, then ct of appeals about inclusion on NOFLY Judge: any

GVT few Judge: any recorded on west law GVT: difcult Judge: surely the DOJ knows of case GVT: Archmont Judge: can you nd out only one yr naming whether others of appelate review i dont know if that's classied too and disposition not classied can you check and can you le in the record here inference ill draw the accessibility of this petition process sands running thru hourglass and i turn into a pumpkin Risnor for GVT Judge: so any person: facts assume true: may never know why: bc such a secret natsec reason could never be made know to that traveler which culminates in appeal ct never given chance to challenge the truth even if its wrong

(we laugh) ladies control yourself GVT: the private submit to the agency independent review alleged data reports Judge: continue to call into question ms. simian GVT: relies on OIG stmts and explains 38% records when OIG No errors what citation of old reports doesnt show our quality control improvements content to rest on that. plaintiff's nal comments ACLU:

private interest stark and extreme categorical denial of notice doesnt satisfy due process placement on list ban on ying reasons underlying no contest innocent people left on list archmont case sets forth no info provided to the petitioner an ex parte process with no chance to correct misinfo no chance to be heard get due process 9th circuit process: does not let TSA thru DHS gives no chance for hearing b4 hearing as smthng to satisfy due process 9th circuit makes that clear. Judge: re bill of attainder what about apa claim ACLU: under 706 contrary to constitutional law violating due process sep and apart arbitrary and capricious congress

defendents directed to have REDRESS system fair and to correct errors and misinfo the two parts are the fair part and the individual those directives discretion unfair the record that shows for the very same reason doesnt permit errors GVT cant show a rational connection between Trip system Judge: bill of attainder? ACLU: apa argument Judge: mr Risonor ling in due course few weeks end notes by mary eng 21 june 2013 latif v. holder et al re NOFLY