Putting Wednesday's Suspects on No-Fly List May be Illegal
Would Raise Concerns About Denial of Rights Without Due Process
The list itself is already mired in controversy, and in various court proceedings, about the criteria used to add persons to the list, the need to notify people on the list before they are suddenly denied boarding at the airport, and the procedures - including burdens of proof - for those wrongfully added to the list to obtain removal, all largely over due process concerns.
But this call seemingly raises new concerns and legal arguments, suggests public interest law professor John Banzhaf, because it will be claimed that persons who are innocent - or at least not proven guilty - will be arbitrarily denied important rights (often referred to as "liberties") without any due process, and without time to obtain redress through the courts.
These rights include the fundamental right to travel, and well as the First Amendment right to "petition the Government for a redress of grievances,"
There is a real risk that some persons will be wrongfully identified from pictures and video tapes as having "stormed the U.S. Capitol," especially given the time pressures to identify the persons and to add them to he list, suggests Banzhaf.
Probably some with the same or similar names to actual criminal rioters will be added, in haste and in error, to the list.
It will also be argued that some persons, properly identified as being on the Capitol grounds, did nothing illegal because they entered after the barriers were removed or, at most, engaged in minor acts of trespass which do not necessarily make them potential threats.
In other words, placing all individuals who simply "entered" the Capitol, as Schumer has demanded, could arguably sweep too broadly and, by denying people their fundamental right to travel (as least over long distances) could cost them their jobs, deprive them of important opportunities, etc.
Balancing the need to protect against future criminal riots in the District and state capitals against the rights of citizens to be free of arbitrary and possibly mistaken governmental interference - not to be deprived of liberty with due process of law - is complex and difficult, especially when everyone is under tremendous time pressures, admits Banzhaf.