A diary by orthogonal has been at the top of the Rec List for some time. I didn't write it, but its a good read about the relatives of some suspected terrorists who are having quite some trouble getting back into the country themselves despite no allegations of wrongdoing. Either before or after reading this, you should read it, if you haven't already.
A common theme in the comments -- besides outrage and incredulity -- is that it would be illegal for the government to interfere with the right of US citizens to re-enter the country. Another is that there is some distinction that (surely!) can be drawn between the no-fly lists and de facto exile. And, regardless, surely we here at home are free, like the airline commercials say, to move about the country.
Right? Right...? Maybe not.
In short, there is no written law guaranteeing the right of free movement within the several states, or across the borders of the United States in either direction. There are, however, Supreme Court precedents that recognize the necessity of that right's existence.
Kent v. Dulles, 357 U.S. 116 (1958) overturned a decision by the Secretary of State to refuse a passport on the grounds that the applicant was believed to be going abroad to promote communism. Justice William O. Douglas wrote, in part, "The right to travel is a part of the 'liberty' of which the citizen cannot be deprived without due process of law under the Fifth Amendment...." Saenz v. Roe, 526 U.S. 489 (1999) addressed, fundamentally, restrictions on a California welfare program. But in doing so, it addressed the rights of interstate travel. Justice Stevens, writing for the majority, found three such rights were "firmly embedded in our jurisprudence". These are the right to enter and leave the states (based in no extant law but comprising Article IV of the Articles of Confederation), the right to be treated as a "welcome visitor" (based in Article IV's Priveledges and Immunities Clause), and the right for permanent residents of states to be treated equally to native-born citizens (based in the 14th Amendment).
So, can the government interfere with the ability of a US citizen to enter the country from abroad or possibly to travel between states or onto federal land? Apparently, the answer is in fact yes, in several ways.
Most strongly, in the near future, the Western Hemisphere Travel Initiative (WHTI) (created as a result of the passage of the Intelligence Reform and Terrorism Prevention Act of 2004) phases-in a requirement for a passport or certain other secure identification (currently these options are extremely limited) for anyone, including a US citizen, to enter the country, including from Canada, Mexico, and other previously reciprocally passport-exempted countries. When these limitations go into effect (8 Jan 2007 for air and sea travel, 1 Jan 2008 for land border crossings), the re-entry of US citizens who exited the country without a passport may be difficult. Furthermore, although Canada has indicated that they will be increasing the documentation for entry to match our new laws, Mexico has, to my knowledge, not. (I have no idea at all about the narrower passport exemptions that currently exist regarding Bermuda and Panama). It may very well be possible to walk across the Mexican border legally (that is governed by Mexican law), but be unable to return legally (as that is governed by US law). A seperate problem is the financial limitation of the right to travel so imposed (passport processing is around $100, and may increase with the upcoming inclusion of biometric chips in US passports). Presumably, Americans in such a situation would be required to acquire an emergency consular passport from the nearest consulate office.
But even now, it is possible for the government to limit the right to travel without the need for new law. The government is allowed to both pass laws and take actions that restrict Constitutional rights. The Constitutionality of these laws and actions is determined through the standard of strict scrutiny, which includes three "prongs". First, the law or policy must be derived from a compelling governmental interest. Both national security and "preserving the lives of multiple individuals" have been cited as appropriate compelling interests. Second, the law or policy must be narrowly tailored to meet that goal, and, third, it must be the least restictive means to accomplish that goal. The latter two prongs are closely related, despite being considered seperately by the Court.
Very few cases survive strict scrutiny (or even face it), because the most common reason for that standard to be employed is discrimination based on a protected class. However, one of the Supreme Court's darkest moments -- albeit one that we know is still in favor with the current administration -- speaks especially to the possibility of travel restrictions meeting strict scrutiny. Korematsu v. United States, 323 U.S. 214 (1944) is the WWII Japanese internment case. The flaws of this decision are usually centered around the racial issues, as well as the provision of false testamony to the Court by government actors. The latter is the reason why the convictions (though not the ruling) have been overturned. There has been little if any opposition to the internment actions on right of travel grounds.
This might have been a factor in the application of free speech zones. Although the ACLU has opposed them on First Amendment free speech grounds, they have included a substantial assault on the right to travel as well, as indicated especially by the arrest of Brett Bursey in South Carolina, first (and eventually leading to conviction) for trespassing but also for a law allowing for the arrest for "willfully and knowingly to enter and remain" in places that, by the intent of the law, are unoffical or temporary offices of the President or areas cordoned off around the President for security purposes, but in actual wording (and practice via the free speech zones) are pretty much anywhere remotely associated with the President (or anyone else protected by the Secret Service) that the Secretary of the Treasury will sign off on.
And, then, of course, we're back to the no-fly lists. These, when applied to US citizens, restrict the right to travel. To the extent that they are government actions, they should be required to pass strict scrutiny. The Court at current seems willing to allow Executive designation of persons in categories that restrict their rights; as evidence of this, the Court refused to strike down the "unlawful combattant" status or the ability of the government to detain them in Hamdi v. Rumsfeld, 542 U.S. 507 (2004) or Hamden v. Rumsfeld, 548 U.S. _ (2006). Because the no-fly list is less infringing upon rights than unlawful combattant detention, it seems unlikely at this point that the Court would find it unacceptable barring other grounds of dispute. Furthermore, one those potential other issues is sidestepped simply by virtue of the no-fly lists being Executive actions (as they are FAA/FBI or TSA actions). The Congress is Constitutionally enjoined from targetting specific individuals for punishment outside of the judicial system through the prohibition of writs of attainder. There appears to be no equivelent stricture binding the Executive branch; thus, an Executive Order could (and has, in the case of Padilla) legally affect a specific, named person or persons detrimentally. This also has precedent going back to the WWII internment: Presidential Proclamations 2525, 2526, 2527 and 2537, in particular. They also seem to have sidestepped Privacy Act restrictions on the compilation and use of secret government lists by claiming use of the "law enforcement" purpose exemption.
This does not end with detainment of suspected terrorists (although that should be worry enough!). Cases resolved or in progress support the government's assertion to set restrictions on the ability of US citizens to freely move about the country. Although the Deborah Davis case in Denver appears closed, the government continues to assert the ability to demand identification for entrance to a federal facility (or, by extension, to any federal property that might have a restriction so applied). There is some concern that the "stop and identify" ruling in Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004) might indicate a growing judicial leniancy towards identificaton requirements; although the Court narrowly worded its ruling to require people identify themselves to police who have a resonable suspicion of criminal intent, it is widely thought of as permitting police to demand identification at any time (and, in practice, might be able to be so construed).
Furthermore, at least some of these restrictions on travel are not publically known, and seem to fall under the classification of secret law. The authority granted to the TSA to set and alter Security Directives such as the no-fly list specifically allows them to be so set and altered "without providing notice or an opportunity for comment" (49 U.S.C. § 114(l)(2)(A) (2005)). Gilmore v. Gonzales, if heard by the Supreme Court, may clarify some of these issues regarding identification law and the ability of the government to abrogate the right to travel in the name of apparent safety. However, it seems unlikely to do so (or, in my opinion, to be granted certiorari). Gilmore is likely to be again denied standing to challenge anything but the identification-presentation aspects of TSA regulations (and not, for example, the no-fly list). The primary assertion Gilmore makes in objecting to the secret nature of the policy is that it violates due process due to vagueness (as a result of being publically unavailable). The Circuit Court has rebuked this claim, however, citing Supreme Court precedent that "the void-to-vagueness doctrine" requires a "penal statute" that would "impose any criminal sanctions, or threats of prosecution, on those who do not comply". In short, they find, the loss of the right to travel due to a vague (or unavailable) law does not void the law. Further, the Court finds the implied Constitutional right to travel "does not guarantee the right to travel by any particular form of transportation". Likewise, it asserts that the need to show government-recognized identification is, independant of the other issues, not "unreasonable" and, furthermore, does not violate the Fourth Amendment because there is "no penalty for noncompliance". Much of the Court rulings in the Gilmore case, it should be noted, are not restricted solely to the ability to regulate air travel.
By the Circuit Court's logic, the government may prevent a citizen from using any given form of transit without identification, so long as no penalty exists save the barring of that transporation, and so long as some other means of travel exists, irrespective of its inconvenience or impracticality. Back where we started with the WHTI, that identification may require nontrivial expense and substantial processing delays (passports versus driver's licenses, for example). And, thanks to the powers granted the TSA, the government also doesn't have to tell you about how it all works in order to ask for compliance.
May I see your papers, please?