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Sunday, November 29, 2015

Manta & Robertson on Secret Jurisdiction

Irina D. Manta and Cassandra Burke Robertson have posted Secret Jurisdiction, 65 Emory L.J. __ (forthcoming 2016) on SSRN. Here is the abstract:

So-called “confidentiality creep” after the events of 9/11 has given rise to travel restrictions that lack constitutionality and do nothing to improve airline security. The executive branch’s procedures for imposing such restrictions rely on several layers of secrecy: a secret standard for inclusion on the no-fly list, secret procedures for nominating individuals to the list, and secret evidence to support that decision. This combination results in an overall system we call “secret jurisdiction,” in which individuals wanting to challenge their inclusion on the list are unable to learn the specific evidence against them, the substantive standard for their inclusion on the list, or the process used to put them there. The executive branch has argued that its decision to put someone on the no-fly list should be judged by a minimal “reasonable suspicion” standard. It has further stated that any plaintiff wishing to be removed from the list must demonstrate that the government’s suspicions are unreasonable, and must do so without hearing the evidence that led to those suspicions in the first place. The momentum may have finally shifted with the litigation in Latif v. Holder, which recently led a federal court to recognize for the first time that, at a minimum, individuals have a due-process right to learn whether they are on the list and to have at least some opportunity to challenge their inclusion on the list. Many questions still remain, and no court has yet ruled on the question of what process is due to plaintiffs in such actions — that is, whether they are entitled to a hearing, whether they have the right to learn the full scope of the evidence against them, and whether “reasonable suspicion” is a sufficient basis on which to affirm travel restrictions. We argue that a traditional procedural due process analysis is insufficient to protect individual rights when national security requires that much of the information relevant to that analysis be kept secret. To counter this deficit, we suggest that courts should incorporate elements of substantive due process by applying a unified due process standard that requires a higher evidentiary burden — and real evidence of national security benefits — before the government may curtail significant individual liberties.

I read an early draft of this article & found it quite compelling. The individual burden of being placed on the "no fly" list is high & the government's incentive to ensure that such placement is justified is low, so I am inclined to agree that some degree of increased scrutiny is justified, under the circumstances. Sadly, I am not optimistic about the likelihood of Manta & Robertson's recommendation being adopted, but I hope my cynicism is unwarranted!

In other news, I recommend the oddly compelling & more-than-slightly creepy TSA Instagram account, which documents contraband seized by TSA agents, accompanied by helpful advice about what you can & cannot bring on a place & how. One of my favorite elements is the repeated assertion, "As we’ve said before, we’re not looking for illegal narcotics, but we have to report them to law enforcement when discovered." Incidentally, if you have "travel-related questions" you can tweet them to @asktsa. Which is actually considerably more responsive than you might expect.


Posted by Brian Frye on November 29, 2015 at 07:20 PM | Permalink


If a person on the no-fly list has a right to know the government's evidence that they pose a national security threat, is it problematic that this would seem to give people who actually *do* pose a national security threat a way to (a) know that the government is watching them and (b) know what information the government has, which presumably could tell them the sources of surveillance so they could avoid those sources in the future? Or is the assumption that only people who don't actually pose a national security threat would bring such challenges?

Posted by: Orin Kerr | Nov 29, 2015 7:42:41 PM

Orin, a good point. The article proposes in camera review, which strikes me as a reasonable compromise. Presumably, if you are on the no fly list, you can presume that the gov't is watching you (at least in theory). In camera review would increase due process, while preserving (more or less) the secrecy of the information.

Posted by: Brian L. Frye | Nov 29, 2015 7:54:57 PM

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