Loudspeakers: The Winning Strategy Against North Korea? Part II

Beginning of this year, South Korea and North Korea began shouting at each other again. It was just last August when the escalated tension between two divided nations came to a halt. Then on January 6, North Korea conducted an underground nuclear test at Punggye-ri Nuclear Test Site, causing tension between the two Koreas. The United States Geological Service reported a 5.1 magnitude earthquake from the location[1]; China Earthquake Networks Center described the seismic activity a “suspected explosion.”[2] As the investigation of the test began, South Korea began blasting loudspeakers over the border again.

What is Broadcasted Over the Loudspeakers?

Propaganda has been a useful weapon to South Korea since the Korean War. North Korea is a nation where its survival is based on isolation. Information is closely monitored, and its people live in complete isolation from the world. The Juche ideology, the cornerstone of party works and government operations, emphasizes a Korea-centered revolution. The three core tenets are political independence, economic self-sustenance, and self-reliance in defense. North Korean government controls almost every aspect of its people, and this control is use to perpetuate a cult of personality surrounding Kim Il-sung and Kim Jong-il. Since its people does not have any idea of the world outside of North Korea, much of the broadcast over the loudspeakers are world news, weather, and K-pop songs, mostly intended to demoralize North Korean soldiers along the border. World news and weather is broadcasted as a strategy to gain trust of the North Koreans at the border and foster mistrust in its own government. Weather, for example, is broadcasted giving warnings of rain or snow. North Koreans who hear this broadcast soon find out the weather broadcast to be true and respond accordingly, such as carrying umbrella when they go out or collecting and taking their laundry inside their home. South Korean pop and drama are broadcasted due to its popularity in North Korea, especially because North Korea pretty much has no pop culture and to show them that the world has modernized. Moreover, North Koreans are prohibited from listening to K-pop, and are allowed to listen only to government-controlled radio stations or TV channels. Despite the restriction by the government, South Korean pop culture has crossed into North Korea. Some defectors say that South Korean music is popular in their country. [3]

How long is the broadcast and how far does the sound travel? According to South Korean military spokesperson, there were two to six hours of broadcast daily, day and night, without any set schedule. The distance of the broadcasts varies depending on the time of the day and the weather. During the day, the broadcast carries for over six miles, and on maximum power at night, it can reach as far as 15 miles. This is far enough to reach Kaesong, one of the largest cities in North Korea,

Does it work?

While it is difficult to know how much influence the broadcast has in North Korea, it seems to be an effective propaganda tool. Even though the broadcast is heard up to 15 miles from the border, it is possible that the message could spread via cell phone.[4] Ju Seung-hyeon, who served in a North Korean propaganda broadcast station on the border before defecting in the early 2000s, told a South Korean newspaper that Seoul’s messages influenced his opinions over a prolonged period. He initially believed that the broadcasts were lies. However, in a span of two years, he believed most of it.[5] Jang Jin-sung, a former North Korean propaganda official and who defected North Korea in 2004, said that the broadcast are powerful because they undermine the North Korean government and “it’s akin to a peaceful version of the nuclear bomb.”[6]

The use of loudspeakers caused exchange of artilleries between the two countries last August, before South Korea agreed to halt them. Moreover, North Korean delegates repeatedly demanded the halt of the broadcast, citing concerns that it was agitating their solders on the border. North Korea’s violent retaliation and South Korea’s loudspeakers may be an indication that it is a powerful weapon against North Korea, or at least it is a powerful bargaining chip to use in negotiations.

[1] Greg Botelho, U.N. Poised to Act against North Korea After Latest Nuclear Test, CNN Jan. 7, 2016,  http://www.cnn.com/2016/01/06/asia/north-korea-hydrogen-bomb-test/index.html.

[2] North Korea Claims Successful Hydrogen Bomb Test After Quake, Channel NewsAsia Jan, 6, 2016, http://www.channelnewsasia.com/news/asiapacific/man-made-quake-detected/2402490.html.

[3] Ask a North Korean, Do You Love K-pop, Guardian Newspaper, June 18, 2015, http://www.theguardian.com/world/2015/jun/18/k-pop-south-korea-ask-a-north-korean.

[4] Alexandre Dor, North Korea’s Achilles Heel: Propaganda Broadcasts, The Diplomat, Sept. 12, 2015, http://thediplomat.com/2015/09/north-koreas-achilles-heel-propaganda-broadcasts/.

[5] Alastair Gale, High-Wattage Speakers Play Role In Korean Deal, Wall St. J., Aug. 28, 2016,  http://www.wsj.com/articles/high-wattage-speakers-play-role-in-korean-deal-1440758282.

[6] Id.

Stopping Terrorism at the Border

Are the U.S. borders the last stop before both foreigners and citizens are entitled to the constitutional rights generally afforded to all within the United States? Terrorists have long been recruiting Americans whose outward appearance matches the local population to make their war against the non-believers more effective and inconspicuous. A limit on search and seizure to the standard of reasonable suspicion allows these “typical Americans” to cross the U.S. land borders without any additional scrutiny; meanwhile, those who fit the terrorist stereotype are subject to interrogation. Perhaps security measures at a land border and other checkpoints should mimic those at the airport to prevent a lapse in judgment or a border guard from overlooking a subtle red flag.

Should only an act of suspicion trigger a search and seizure at the U.S./Mexico and U.S./Canada borders, or should border guards subject all travelers to the same kinds of security measures as those in an airport? Ahmed Ressam, commonly known as the Millennial Bomber, attempted to enter the U.S. from Canada via a ferry.[1] When Ressam reached Port Angeles, Washington, U.S. Customs and Border (CBP) officers performed a standard search of the vehicle he brought with him.[2] Officials found nothing during this search, but a border guard decided to give him additional scrutiny based on his body language and facial expressions.[3] A more thorough search of Ressam’s car then produced explosives hidden in the spare tire well.[4] Should we always wait for that act of suspicion to occur, and if not, then how thorough should a required search and seizure be? The routine search and seizure of Ressam’s car failed to yield results since CBP officers did not check the trunk’s spare tire well.[5] Without another agent’s shrewd assessment of Ressam’s body language, perhaps Ressam would have been able to successfully bomb the Los Angeles Airport.[6]

The fourth amendment protects Americans from unlawful search and seizure; however at the border, should national security rely solely on CBP officers to determine who receives a more stringent search?[7] Perhaps stricter searches will lead to capturing others like Ressam and remove the element of human judgment while simultaneously treating all travelers equally. In U.S. v. Ramsey, the Supreme Court held that border searches are considered reasonable due to the fact that the person or item of interest entering the U.S. is from the outside.[8] As a result, the border represents the best and final opportunity for CBP officers to secure our borders before domestic law enforcement has to allocate limited resources in an effort to protect American citizens from those who breezed across the border with the sole intent to do substantial harm to the U.S. and its people.

Lastly, racial profiling and other stereotypes will not be a point of contention if everyone is required to be thoroughly searched. In 2004, CBP officers detained five American Muslims returning from an Islamic revival conference in Canada.[9] Although they did not have criminal records, they were questioned, patted-down, fingerprinted, and photographed by CBP officers over the course of several hours.[10] The court held that in Tabbaa v. Chertoff, searches and detentions constituted the least restrictive means to protect the nation from terrorism.[11] Given the recent surge of terrorist activities in Europe, the court’s opinion has merit. Despite the inconvenience of a detailed search, the time lost is a small price to pay for the safety of the country.

 

 

[1] United States v. Ressam, 474 F.3d 597 (9th Cir. 2007).

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] United States v. Ressam, 474 F.3d 597, 600 (9th Cir. 2007).

[7] U.S. Const. amend. IV.

[8] United States v. Ramsey, 431 U.S. 606, 619 (1977).

[9] Tabbaa v. Chertoff, 509 F.3d 89, 92 (2d Cir. 2007).

[10] Id.

[11] Id.

Cell Site Simulator Technology Violating Fourth Amendment Rights

In the age of modern technology, the balance between individuals’ privacy rights and national security have been heavily weighed. Advances in technology have enabled government agencies to obtain cellular information without appropriate judicial review and without the individual’s knowledge. Due to public outcry and complaints made by the American Civil Liberties Union, the Federal Government felt that appropriate action should be taken to minimize the use of this rare technology and has restricted the use of cell-site simulator technology without a warrant; however, state and local governments have not been instructed to do so and many have failed to address the issue at all. 1

The Fourth Amendment protects persons’ personal privacy from government intrusion.2 When intrusion leads to the obtainment of intimate knowledge, it will be deemed unreasonable unless the need for public interest is outweighed by the privacy interest of the individual.3 For a search to be reasonable, officers generally will need to acquire a search warrant signed by a magistrate.4 If information is obtained without a search warrant and without an exception to the search warrant clause, it will be deemed inadmissible at trial.5

The use of technology, not acquirable by an ordinary person, dates back to the Supreme Court’s decision, Kyllo v. United States.6 The Supreme Court held that the obtainment of information through sense-enhancing technology into the interior of the home, that could not have been obtained without a physical intrusion, is a search.7 The Supreme Court has also determined that the monitoring of a beeper device in a private residence, not in a location open to visual surveillance, is a violation of the Fourth Amendment.8

More recently, with the storage capacity of modern cellular devices, the Supreme Court has instructed that the Government must obtain a search warrant before conducting a search of the content.9 This is because of the vast amount of intimate information such as emails, medical information, photographs and credit card information.10 The protection is placed on what a person preserves as private and in the modern era, the contents of a cellphone will be preserved as private to most individuals.

It has recently come to light that government agencies, local and federal, have been using cell-site simulator technology to obtain physical locations of suspects. A cell-site simulator, known as Stingray, acts as a substitute cell tower and awaits signals from particular cellular phones.11 Based on the strength of the signal, a general location can be determined.12 Once multiple signals and locations have been obtained, a precise location is then determined.13 The location is so precise that it can pinpoint the cellular phone to a particular room in a large building. Based on precedent, Courts are likely to hold that the use of Stingray is a search and inadmissible without obtaining a warrant. The ability to obtain tracking information from the device is in violation of the decision in Riley v. California, where the Court held that a cellular phone may  not be accessed and searched without first obtaining a warrant or consent.14 This technology is also rare technology that is not available to the general public and would physically intrude into an individual’s home.15

The Department of Justice has recently drafted and adopted a policy instructing government agencies to obtain appropriate approval before utilizing cell site simulators.16 This was in light of claims being made by organizations like the American Civil Liberties Union that the government was failing to inform the courts that they have access to this information and instead reported using criminal informants to obtain the information.17 While this was determined to be used more often local police departments, this technology allowed the ability for the Government to violate individual’s privacy rights.

After the Department of Justice drafted a policy requiring investigators to obtain warrants before using cell site simulators, state and local departments have not been forced to do the same. There are even loopholes to this policy. It merely applies to criminal investigations NOT national security or border cases. This means, that the Government has the ability to use Stingray when “monitoring” the border for national security. Has the Government failed to protect its citizens again? After the excessive collection of citizen’s information found under the United States Patriot Act, shouldn’t the Government protect individuals’ privacy rights at a higher level? Also, does this new policy prohibit the use of Stingray on suspected terrorists without a warrant? To many questions are still left unanswered after the drafting of this policy that need to be answered.

  1. Neema Singh Guliana, ACLU, The Four Biggest Problems With DHS’s New Stingray Policy, Oct. 22, 2015, available at https://www.aclu.org/blog/free-future/four-biggest-problems-dhss-new-stingray-policy.
  2. U.S. Const. Amend. IV.
  3. Kyllo v. United States, 533 U.S. 27, 36 (2001).
  4. U.S. Const. Amend. IV.
  5. Id.
  6. Kyllo, 533 U.S. 27.
  7. Id. at 40.
  8. United States v. Karo, 710 F.2d 1433, 1439 (1983).
  9. Riley v. California 134 S. Ct. 2473, 2494 (2014).
  10. Id.
  11. Department of Justice, Department of Justice Policy Guidance: Use of Cell-Site Simulator Technology, Sept 3, 2015, available at https://www.justice.gov/opa/pr/justice-department-announces-enhanced-policy-use-cell-site-simulators.
  12. Id.
  13. Id.
  14. Riley, 134 S. Ct. 2473, 2494.
  15. Kyllo, 533 U.S. 27.
  16. Department of Justice, Department of Justice Policy Guidance: Use of Cell-Site Simulator Technology, Sept 3, 2015, available at https://www.justice.gov/opa/pr/justice-department-announces-enhanced-policy-use-cell-site-simulators.
  17. Jeremy Schahill & Margot Williams, The Intercept, Stingrays: A Secret Catalogue of Government Gear for Spying on Your Cell Phone, Dec. 17, 2015,  available at https://theintercept.com/2015/12/17/a-secret-catalogue-of-government-gear-for-spying-on-your-cellphone/.

Donald Trump, Illegal Orders, and the Law of Armed Conflict

During the course of the current Republican Primary campaign, Donald Trump has made a number of jarring comments regarding American armed forces and the actions he would take as president. At a rally in Columbus, Ohio, Trump said that he approves not only of waterboarding, but also that he would bring back “a hell of a lot worse than waterboarding.” Trump elaborated on his belief that waterboarding is an effective means of extracting information from terrorists, saying, “only a stupid person would say it doesn’t work,” and that even if waterboarding were not effective, “[terrorists] deserve it anyway for what they’re doing.” Trump has also waxed nostalgic for the days “when we were strong” and Sergeant Bowe Bergdahl, who is being tried for desertion and misbehavior before the enemy, would have been summarily executed. Decrying the politically correct nature of the present conflict with ISIS on Fox News, Trump said, “The other thing with the terrorists is you have to take out their families, when you get these terrorists, you have to take out their families. They care about their lives, don’t kid yourself. When they say they don’t care about their lives, you have to take out their families.”

In response to Trump’s comments about waterboarding and killing the families of terrorists, General Michael Hayden, former Director of both the NSA and CIA, said that he “would be incredibly concerned if a President Trump governed in a way that was consistent with the way that candidate Trump expressed during the campaign.” Gen. Hayden, in an interview with Bill Maher, said that if members of the American armed forces were ordered to kill the families of terrorists, they would refuse to act. Gen. Hayden explained that members of the military are not required to obey an unlawful order and that Trump’s hypothetical order would be a violation of international laws of armed conflict. When asked about Gen. Hayden’s statement at a Republican Debate, Trump responded, “They’re not going to refuse me, believe me. If I say do it, they’re going to do it. That’s what leadership is all about.”

Under military law, a soldier is generally subject to criminal sanctions for failing to follow a superior’s lawful order. [1] The only defense available to members of the armed forces for failing to follow an order is that “the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful.”[2] More specifically, the standard is that “manifestly illegal orders must not be obeyed.”[3] Determining whether an order is manifestly illegal or not can be difficult because “[m]embers of all armed services have a right to presume the lawfulness of orders they receive.”[4]

The presumption of legality “helps maintain and promote good order and discipline . . . . Since subordinates do not risk incurring liability in most situations, the presumption effectively compensates for the subordinate’s lack of information and eliminates the possibility of hesitation and delay in carrying out orders.”[5] Thus, a soldier’s duty to disobey applies only to “a positive act that constitutes a crime [that is] so manifestly beyond the legal power or discretion of the commander as to admit of no rational doubt of their lawfulness.”[6] Under this standard, “a person’s conscience, religious beliefs, moral judgment, or personal philosophy” do not constitute manifest illegality “to justify or excuse the disobedience of an otherwise lawful order.”[7]

The relevant standard in determining whether an order is manifestly illegal is “would a reasonable person recognize the wrongfulness of the act or order, even in light of a soldier’s duty to obey?”[8] Thus, in cases where the legality of an order is uncertain, “the order must be presumed lawful and it must be obeyed.”[9]

If a U.S. service member believes that an order is manifestly illegal or beyond the authority of the superior issuing the command, the order should not be obeyed.[10] The service member should then “ask for clarification of the order to ensure it was correctly understood, or correctly heard, or was not merely misspoken by the senior person.”[11] Should the superior issuing the order persist, a subordinate must then report the incident to a higher authority.[12]

Under this analysis, an order from President Trump to murder the civilian family members of a suspected terrorist would most certainly qualify as a manifestly illegal order. In his interview with Gen. Hayden, Bill Maher remarked that the military would commit a coup d’etat by refusing to follow an illegal order from Trump. However, “receipt of a manifestly illegal order is not justification for a subordinate to attempt to relieve the superior of duty or, even more unwise, to take physical action, such as resorting to armed force, to stop a superior’s unlawful plan.”[13]

In an interview on CBS, Trump said that, “We have an enemy that doesn’t play by the laws. You could say laws, and they’re laughing. They’re laughing at us right now. I would like to strengthen the laws so that we can better compete.” Trump went on to say, “I happen to think that when you’re fighting an enemy that chops off heads, I happen to think that we should use something that’s stronger than we have right now.”

Trump’s concerns with fighting an enemy that eschews the laws of armed conflict were presaged by former Secretary of Defense Donald Rumsfeld. “There’s something about the body politic in the United States that they can accept the enemy killing innocent men, women and children and cutting off people’s heads, but have zero tolerance for some soldier who does something he shouldn’t do.”[14] However, the laws of armed conflict (LOAC) serve a critical purpose. “We obey LOAC because we cannot allow ourselves to become what we are fighting and because we cannot be heard to say that we fight for the right while we are seen to commit wrongs.”[15] To view weakening the standards of professional conduct of the battlefield as “strengthening” the laws is Orwellian, at best. Engaging groups such as ISIS in a competition of cruelty is beneath the dignity of the United States. The duty of members of the armed forces to disobey manifestly illegal orders serves to protect the honor of the profession of arms as well as our republic.

 

 

 

 

 

 

 

[1] Captain Robert E. Murdough, I won’t participate in an illegal war: Military Objectors, the Nuremberg Defense, and the Obligation to Refuse Illegal Orders, Army Law. Jul. 2010, at 4, 5.

[2] See id. (quoting Manual for Courts Martial, United States, R.C.M. 916(d) (2008)).

[3] Gary D. Solis, The Law of Armed Conflict: International Humanitarian Law in War 359 (2010).

[4] Id.

[5] James B. Insco, Defense of Superior Orders Before Military Commissions, 13 Duke J. Comp. & Int’l L. 389, 393 (2003).

[6] Solis, supra note 3, at 359 n. 111 (citing United States v. Huet-Vaughn, 43 M.J. 105, 107 (1995)).

[7] Id. at 359.

[8] Id.

[9] Id. at 360.

[10] Id.

[11] Id. at 361

[12] Solis, supra note 3, at 361.

[13] Id.

[14] Id. at 11 n. 49 (citing Bob Woodward, State of Denial 486 (2006)).

[15] Id. at 9-10.

Constitutionality of the No Fly List

For over ten years the federal government has used the No Fly List to ensure that individuals are barred from flying on U.S. airlines or over U.S. airspace because they were considered terrorists.[1]  Federal courts, historically, have dismissed many cases in the post-9/11 era where plaintiffs raised constitutional challenges to watch lists on “jurisdictional or other preliminary grounds.”[2] However, in 2014, two district courts in the Ninth Circuit ruled that the bare procedures available to challenge an individual’s state on the No Fly List violated due process and the government chose not to appeal either decision.[3] Beyond the Ninth Circuit, other District Courts began to take a stand as well. The District Court for the Eastern District of Virginia refused to dismiss No Fly List cases despite objections from the government regarding state secrets.[4] However, this does not address what future remedies there should be when tackling the issue an individual finds themselves facing when they are kept from flying due to being on the No Fly List.

The flagship case was Latif v. Holder, where the ACLU brought suit on behalf of thirteen U.S. citizens and permanent residents who were barred from flying. The Judge from the District of Oregon stated that being placed on the No Fly List “implicated liberty interests protected by the Due Process Clause.”[1] When the decision was appealed, the District Court of Oregon ruled that the existing procedures to contest being on the No Fly List were ineffective and the government was ordered to create constitutionally proper procedures.

But what is there to do when there is nearly non-existent, if any, substantive due process?  To amend a substantive due process issue, you must turn to the procedure being used to violate due process and change it. In this case, individuals are not provided a process that will bring about a remedy that will be either efficient for the government or satisfactory for the individual burdened with this problem. The questions that require answering are as follow: 1. What should be the amended procedure to allow for proper substantive due process?, 2. Who should be in charge of the newly implemented procedure and remedies?, 3. What sort of remedies should be available once a process is in place?, and 4. Whether and which courts should be tasked with dealing with the cases that arise from placement on the No Fly List?

Substantive Due Process limits what the government can do even if the government is providing the proper procedure. However, in this case, the process put into place is anything but the appropriate process. In this case, there is an argument to be made that this process that has been put into place may violate a U.S. citizen or person’s right to travel and movement and does not allow for a way to satisfactorily adjudicate the issue for correction. The right to travel encompasses at least three different components, but in this case, the right to travel means protection of the right of a citizen of one State to enter and to leave another State.[1] Under Eunique v. Powell, the Ninth Circuit recognized the right to international travel as a protected right under substantive due process.[1] The Supreme Court has also had some things to say with regard to international travel, which can be seen in Apthekar v. Secretary of State, which quoted Kent v. Dulles in saying “this Court declared that the right to travel abroad is ‘an important aspect of the citizen’s ‘liberty“ guaranteed in the Due Process Clause of the Fifth Amendment.”

Thus, to amend the No Fly List complaint process to be in compliance with the law of the Constitution and the Supreme Court, an appropriate due process procedure would need to be put into place. Such things that could be amended would be to allow for appropriate clearance level attorneys, who are able to see the classified materials used against the individual, to work on behalf of the complaining individuals. Another amendment could be a judge or court that can see classified materials, or can sit in camera, to determine the validity of the documents used to put a person on the No Fly List. Finally, an amendment option could be to create a commission or committee whose sole purpose it is is to review individuals on the No Fly List to ensure that those placed on the list, whether they have complained or not, are correctly placed on the list before they even have a chance to make a complaint and use the TRIP process. This would relieve the burden of a violation of an individual’s Constitutional rights.

Once the process has been amended, who runs the new procedure is an important task that needs assigning. It is more appropriate that the Department of Homeland Security, who controls the Transportation Security Administration (the TSA), continues to maintain the No Fly List as they are tasked with protecting the United States’ borders via the Customs and Border Patrol, Immigration and Customs Enforcement, and the Citizenship and Immigration Services. Because the Department of Homeland Security already contains all these border protecting bodies, some of which are specifically stationed at the airport, it makes sense that they maintain the No Fly List and, thus, are the first line of inquiry when an individual has a complaint regarding placement on the No Fly List. Provided the Department of Homeland Security continue to work in sync efficiently, then that part of the current procedure can stay the same in who handles the issue of placement on the No Fly List.

It is also possible for a separate commission or committee to be put together to handle running the No Fly List since it might be even better for the sake of efficiency and expediency that a separate entity maintains the list, reviews complaints lodged about being placed on the No Fly List, and whatever follows through with regard to remedies, whether it be in the form of Due Process or name removal.

The next issue to be cleared away is what sort of remedies should be available to an individual once they have gone through the process and have been found to be improperly placed on the No Fly List. The most obvious answer for future complaints would be the individual should be notified that they have been removed from the No Fly List if they are found to be incorrectly placed on the list. However, if there is reason to believe that the individual is correctly placed on the list, the remedy that should be given to the individual is to be given the information necessary to contest the placement if they want to dispute the placement. With the new procedure in place, including a lawyer with the appropriate clearance and need to know for the case, assigned to the individual contesting the placement, it would be possible for the case to be handled responsibly and the individual could find redress through the actual process by being removed from the No Fly List if the case against them is insufficient. The opposite is also true though in that the federal government could be found to correctly have placed the individual on the list and need fear no backlash on the basis of constitutionality of their methods.

Finally, the last question to be addressed is whether and which courts should be charged with adjudicating cases that arise out of the No Fly List. Article I courts could be the appropriate venue because the No Fly List is maintained by the Department of Homeland Security and reviewed by the FBI when a complaint is lodged. Both of these departments fall under the Executive Branch of the government, which might make it conducive to be adjudicated under the Executive Branch by creating a court or commission that is tasked with handling the No Fly List cases appropriately. However, this may become a conflict of interest they could give bias in favor of the agencies they would purport to challenge because both would fall under Article I of the Executive Branch and there could be the potential to sway or bias these courts or commissions in favor of the Department of Homeland Security or the FBI.

If it is found that an Article I court is insufficient to handle cases arising from the No Fly List, then it is possible that Article III courts will continue to be the court of choice with regard to these cases. Because these cases handle sensitive, federal question material, it would be appropriate for the federal district courts to continue having jurisdiction as, by now, they would be well-equipped to handle the classified materials that exist in these cases. Judges in the federal district courts, some more than others, are used to hearing and reading classified material, operating in camera to protect classified materials, and are more understanding of the restrictions the government has with regard to allowing sensitive material to be shown. However, while they may be more understanding, these judges are also potentially less sympathetic and may try harder, as they have been in recent cases, to ensure individuals complaining about being incorrectly placed on the No Fly List are allowed their day in court.

After Latif, the cases in complaint of the No Fly List have steadily come to court more and more, the government no longer trying to object to them, especially after losing multiple appeals. The Department of Justice has come to terms with the unconstitutionality of the No Fly List, but the list still remains in play. Thus, if the No Fly List is going to continue existing and is enforced, it is necessary to amend the list and the process of complaining against inclusion on the list to make the process constitutionally adequate. As of now, this process is constitutionally unsound and violates U.S. citizens and persons constitutional rights, but it can be rectified by implementing an amended process. However, even after the process is updated, it still remains that Congress and federal courts should question the foundation of the No Fly List itself in that those who have not been charged with any crime are still considered too dangerous to fly under any circumstances and that is still a violation of their Due Process clause.[1]