CT Blue

This article starts out hopefully, but there's a catch:

ALEXANDRIA, Va. — A federal judge expressed skepticism Friday about the constitutionality of the government’s no-fly list, suggesting that those who find themselves on it should be allowed a meaningful opportunity to clear their names.

The lawsuit challenging the no-fly list, filed by Alexandria resident Gulet Mohamed, has been winding its way through federal court for four years, and US District Judge Anthony Trenga has consistently rejected government efforts to get the suit tossed out.

The government says that Mr. Mohamed may not have a hearing because at any such hearing it would be required to reveal state secrets in order to justify his placement on the list. To prevent such an outcome, he may be deprived of his right to travel without any due process whatsoever. This is far worse than the Through the Looking Glass situation to which I referred in a recent post; this time it's sentence first, no trial afterward. He is declared guilty at the unfettered discretion of the executive branch.

What is truly amazing here, is the number of constitutional provisions this “state secrets privilege” would appear to violate. In addition to the obvious due process problems, its use in this situation sounds suspiciously like a bill of attainder, except for the government doesn't even have to go to the trouble of passing a bill. It completely evades the checks and balances process that is supposedly the bedrock of our constitution, for it is the position of the executive that neither Congress nor the courts can second guess the executive's decision.

This is a legal doctrine that was born in fraud (despite the Circuit court's contortions to avoid admitting that fact) and has consistently been invoked to prevent the disclosure, not of state secrets, but of facts embarrassing to the state, or in the case of the no-fly list, the government's inability to actually prove it has a legitimate basis for its actions.

So as I said, there's a catch, and that would be Catch-22. (Is that masterpiece of a book still a rite of passage for any thinking college student? If not, it should be). Straight from Wikipedia, here's a quote that fits perfectly:

Other forms of Catch-22 are invoked throughout the novel to justify various bureaucratic actions. At one point, victims of harassment by military police quote the MPs' explanation of one of Catch-22's provisions: “Catch-22 states that agents enforcing Catch-22 need not prove that Catch-22 actually contains whatever provision the accused violator is accused of violating.” Another character explains: “Catch-22 says they have a right to do anything we can't stop them from doing.”

The latter is the Catch-22 the government is invoking in the no fly case. The district court judge may try to stop it, but odds are good that the Circuit Court will step in and rule that “they have the right to do anything we can't stop them from doing”. Or is it, in this case, “we won't stop them from doing”. Either way, it's another brick in the wall.