Yesterday, the government made public the set of internal rules that are used to compile the list of names on the infamous No-Fly list. Now, the right of U.S. citizens to move among and between the States has its roots in the U.S. Constitution. The Commerce Clause, the Comity Clause, and the Due Process Clause are all the fundamental laws on the right to travel. When the government tells citizens of the U.S. that their right to unfettered travel has been removed, it gets civil and human rights groups, as well as business interests to take action. And it has.
The fact that air travel is only one of many ways to travel makes the No-Fly rules difficult to challenge constitutionally. Those alternative methods of transportation keep the No-Fly rules insulated from primary constitutional law, but not from the rule making Due Process Clause (which is the rule making law). In fact, the Due Process Clause is what is behind the apparent open view policy, which forced the Justice Department and the Transpiration Department to make the No-Fly list rules public in the first place. And although the rules have now been made public, there is no reason to believe that the screening process will become lenient, but at a minimum, the public will see more transparency in the process by which the who, why and when of how names are placed on the No-Fly lists and how they are removed.
As we know, security on domestic air travel is a government function. Screening, for national security purposes, was done under the procedures set out in a document, previously secret, identified as “Watchlisting Guidance.” The procedures were most recently updated in March 2013, and were not available to public scrutiny. All that changed when an online magazine, “The Intercept” obtained “Watchlisting Guidance” and revealed that they had the document. The response from Attorney General Holder was to make the document public. This response is in itself of no real consequence because the next day the internal document and its guidelines were reportedly re-issued and remains secret.