Flight 253
bat
from the story of the pasesnger of the flight 253, where the terrorist
attack took place: about the period after they landed and the passengers
were held in the terminal:
http://ibloga.blogspot.com/2010/01/flight-253-passenger-haskell-fbi-is.html
===============
Specifically, 1 hour after we left the plane, bomb sniffing dogs arrived. Up
to this point, all of the passengers on Flight 253 stood in a small area in
an evacuated luggage claim area of an airport terminal. (...) The FBI was so
concerned during this time, that we were not allowed to use the bathroom
unless we went alone with an FBI agent, we were not allowed to eat or drink,
or text or call anyone.
===============
I'm wondering, what was their legal status during that time, and did FBI
actually have the right to put on them these restrictions?
Timothy
> ===============
>
> I'm wondering, what was their legal status during that time, and did FBI
> actually have the right to put on them these restrictions?
Just guessing: the passengers were witnesses to a major crime--- and
also they were all potential suspects as well. The authorities didn't
necessarily know that it was just that one man from Nigeria and no one
else.
Moreoverm the FBI probably wanted to control the flow of information
from the scene. If you just let the passengers wander away, some of
them will undoubtedly go talk to the media.
Bob
I'm not sure what you mean by "legal status," but clearly the
passengers were detained. Generally, law enforcement has the right to
conduct searches, even without reasonable suspicion, at border points
- if the search is considered "routine." See United States v.
Flores-Montano, 541 U.S. 149, 153 (2004). In addition, law
enforcement may detain passengers for reasonable periods of time
incident to routine, suspicionless searches.
In United States v. Montoya de Hernandez, 473 U.S. 531 (1985), a woman
was suspected of smuggling drugs in her alimentary canal when she
arrived at LAX from Columbia. Customs detained her for 16 hours. A
magistrate issued an order authorizing a rectal exam and an
involuntary x-ray. The court held that the person's detention for a
non-routine search had to be supported by reasonable suspicion. Based
on the circumstances, the court found that the detention was not
unreasonably long.
In United States v. Maltais, 403 F.3d 550 (8th Cir. 2005), Maltais was
stopped near the Canadian border. The border partrol suspected him of
drug smuggling and waited 90-120 minutes for drug-sniffing dogs to
arrive. The court held the detention was reasonable because of the
remote location and the officers' diligence in trying to get the dogs
to the location as quickly as possible.
In the case of Flight 253, passengers were not detained and searched
without suspicion. There was clearly a reason why the government
detained the passengers, waited for bomb-sniffing dogs, searched their
luggage, and restricted their movements.
Barry Gold
occurred]
>> I'm wondering, what was their legal status during that time, and did FBI
>> actually have the right to put on them these restrictions?
Timothy <Timothy....@alumni.usc.edu> wrote:
>Just guessing: the passengers were witnesses to a major crime--- and
>also they were all potential suspects as well. The authorities didn't
>necessarily know that it was just that one man from Nigeria and no one
>else.
Potential suspects is probably sufficient reason to hold them for a
short period of time. Mere witnesses, I have my doubt. Basically, to
hold them in "investigative detention" without a full arrest, they
need to have an "articulable suspicion" that they had committed a
crime.
>Moreover the FBI probably wanted to control the flow of information
>from the scene. If you just let the passengers wander away, some of
>them will undoubtedly go talk to the media.
Not a good reason for holding them. In our system, the government
does _not_ have the right to control the flow of information.
Witnesses, suspects, and victims have a right to talk to the media, to
their friends, their enemies, or anybody else who will listen.
--
Barry Gold, webmaster:
Conchord: http://www.conchord.org
Los Angeles Science Fantasy Society, Inc.: http://www.lasfsinc.org
Seth
Now, what about their Constitutional rights? I can understand holding
them as witnesses / suspects for a limited time. Not allowing them to
communicate seems like it should be a violation. (What would have
happened if someone took out his cellphone and called his attorney?
For that matter, once the plane landed, someone could have made a
cellphone call immediately, before it reached the gate and the FBI had
a chance to do anything.)
Seth
Cy Pres
wrote:
[Holding passengers from Flight 253.]
>Potential suspects is probably sufficient reason to hold them for a
>short period of time. Mere witnesses, I have my doubt. Basically, to
>hold them in "investigative detention" without a full arrest, they
>need to have an "articulable suspicion" that they had committed a
>crime.
I believe that under the material witness statute, the government has
the statutory authority to hold witnesses who represent a flight risk
or, for that matter, to hold witnesses in protective custody who might
be killed.
Immediately at the scene of the incident, all the witnesses are there,
and the exigencies of the situation really require a thorough
investigation. This justifies the brief detention while the
investigation proceeds, since *everyone* present is potentially a
villain or a material witness.
Moreover, people's memories are their freshest at this time, and there
is a critical law enforcement necessity to get the best evidence
possible.
I don't think the FBI did anything wrong here, at least not by
detaining the passengers for a brief time.
>>Moreover the FBI probably wanted to control the flow of information
>>from the scene. If you just let the passengers wander away, some of
>>them will undoubtedly go talk to the media.
>Not a good reason for holding them. In our system, the government
>does _not_ have the right to control the flow of information.
That might depend. There are all kinds of exceptions to that, such as
gag orders, national security, communications relating to criminal
conspiracies, tipping off criminals to upcoming raids, offers to buy
or sell illegal drugs, and any number of other examples.
These exceptions are generally construed very narrowly, but there are
occasions when an ongoing criminal investigation could justify it. An
example of such a restraint that has been upheld is the criminal
conviction of attorney Lynne Stewart for transmitting communications
from her client to alleged terrorist associates.
>Witnesses, suspects, and victims have a right to talk to the media, to
>their friends, their enemies, or anybody else who will listen.
Many times, grand jury testimony is sealed and kept secret. It could
violate criminal law to spill the beans on a sealed indictment, for
instance, at least if one had any obligation not to do so.
grendal
> Now, what about their Constitutional rights? �I can understand holding
> them as witnesses / suspects for a limited time. �Not allowing them to
> communicate seems like it should be a violation. �(What would have
> happened if someone took out his cellphone and called his attorney?
> For that matter, once the plane landed, someone could have made a
> cellphone call immediately, before it reached the gate and the FBI had
> a chance to do anything.)
>
> Seth
If I recall, the passengers were held for a brief time, so that the
FBI can debrief and determine what happened and if there were any
other potential threats in the group.
The point is that they were all material witnesses to a crime and the
FBI, etc... had the rights to hold them without communications until
they can determine the exact threat and the extent of the threat.
Once they determined what happened, the passengers were released and
they were able to talk to the press.
Sorry, but if you're going to claim, that the fact that they were held
incommunicado and that it violated their civil rights, I and a lot of
other people will laugh at you.
Sorry but thats about as absurd as the woman who called 911 because
she couldn't control her kid from playing video games.
Bob
>
>I believe that under the material witness statute, the government has
>the statutory authority to hold witnesses who represent a flight risk
>or, for that matter, to hold witnesses in protective custody who might
>be killed.
>
>Immediately at the scene of the incident, all the witnesses are there,
>and the exigencies of the situation really require a thorough
>investigation. This justifies the brief detention while the
>investigation proceeds, since *everyone* present is potentially a
>villain or a material witness.
I don't think they were being held under the material witness statute:
"If it appears from an affidavit filed by a party that the testimony
of a person is material in a criminal proceeding, and if it is shown
that it may become impracticable to secure the presence of the person
by subpoena, a judicial officer may order the arrest of the person and
treat the person in accordance with the provisions of section 3142 of
this title. No material witness may be detained because of inability
to comply with any condition of release if the testimony of such
witness can adequately be secured by deposition, and if further
detention is not necessary to prevent a failure of justice. Release of
a material witness may be delayed for a reasonable period of time
until the deposition of the witness can be taken pursuant to the
Federal Rules of Criminal Procedure."
18 USC 3144.
Cy Pres
>I don't think they were being held under the material witness statute:
I don't think they were either, merely that it's possible that some of
them *could* have been, and given the exigent circumstances, it was
reasonable to figure that out immediately at the time, since to do it
subsequently would have missed that opportunity. I also don't think
the material witness statute would have been necessary to hold them.
Even under prior law, the circumstances justified containing the
situation for a time. For instance, if police can detain people at a
nightclub just because there has been a brawl, certainly they may
temporarily detain witnesses to a terrorist attack for a time to
figure out what happened.
Bob
>For instance, if police can detain people at a
>nightclub just because there has been a brawl, . . .
If a person is being detained as a suspect, then the usual 4th
amendment analysis applies. But, generally, a person cannot be
detained just because he is a witness. "Mere presence in a place
where criminal activity is suspected, or mere association with
suspects, is not sufficient to provide probable cause for an arrest."
Ahsley v. Sutton, 492 F. Supp. 2d 1230, 1248 (D. Or. 2007).
In the absence of statutory authority, your best case is Illinois v.
Lister, 540 U.S. 419 (2004). However, Lister provides very limited
authority to detain witnesses, and each detention would have to be
examined on its facts.
I assume the nightclub case you refer to is Palacios v. Burge, and
that court found a forced show-up to be constitutional. The court
mixed the witness line of authority with the suspect line of authority
and threw in exigent circumstances for good measure. Even that court
had to limit its holding: "Here, the police knew to a virtual
certainty that the perpetrators whom they hoped to identify were among
the patrons and likely to escape, and briefly detaining these patrons
and instructing them to walk outside, unlike the body frisks in
Ybarra, was minimally intrusive."
Although the detention in Flight 253 apparently went well beyond the
detention in Lister, or even the detention in Palacios, my guess is it
was still constitutional, but under the border line of cases, as I
explained in my original post.
Usually, these issues don't arise because most witnesses will
cooperate with police and don't challenge the police's ability to
question them.
Seth
grendal <im_g...@hotmail.com> wrote:
>On Jan 3, 2:11�pm, se...@panix.com (Seth) wrote:
>
>> Now, what about their Constitutional rights?
>If I recall, the passengers were held for a brief time, so that the
>FBI can debrief and determine what happened and if there were any
>other potential threats in the group.
I asked about their Constitutional rights.
>The point is that they were all material witnesses to a crime and the
Apparently not. Bob quoted elsethread: "If it appears from an
affidavit filed by a party that the testimony of a person is material
in a criminal proceeding,"
Many of the passengers did not witness anything material.
>FBI, etc... had the rights to hold them without communications
According to which Constitution?
> until
>they can determine the exact threat and the extent of the threat.
Did they believe there was still a threat _on the ground_?
If the threat is other terrorists (currently still in foreign
countries) acting, then the FBI can *never* determine th exact threat
and extent of the threat.
>Once they determined what happened, the passengers were released and
>they were able to talk to the press.
I asked about their rights before that.
>Sorry, but if you're going to claim, that the fact that they were held
>incommunicado and that it violated their civil rights, I and a lot of
>other people will laugh at you.
Many people consider the Constitutional Rights of others to be
laughable.
>Sorry but thats about as absurd as the woman who called 911 because
>she couldn't control her kid from playing video games.
You don't see a difference between the FBI violating people's rights
and a women making an ill-advised phone call?
Seth
Cy Pres
>On Wed, 06 Jan 2010 10:10:51 -0500, Cy Pres <c.p...@yahoo.com> wrote:
>>For instance, if police can detain people at a
>>nightclub just because there has been a brawl, . . .
>If a person is being detained as a suspect, then the usual 4th
>amendment analysis applies. But, generally, a person cannot be
>detained just because he is a witness. "Mere presence in a place
>where criminal activity is suspected, or mere association with
>suspects, is not sufficient to provide probable cause for an arrest."
>Ahsley v. Sutton, 492 F. Supp. 2d 1230, 1248 (D. Or. 2007).
Right. And I'm not challenging that principle, either. However,
being on a flight where a terrorist attack has occurred is somewhat
different in character and scope than merely witnessing a crime. It
is more akin to the nightclub situation, in which it is a virtual
certainty that the perpetrator or perpetrators, or at least some
representative sample of them, is among the people present in the
plane.
There is also a strong public safety component to releasing other
potential terrorists without even as much screening as the airline
does before letting them on the plane in the first place.
>In the absence of statutory authority, your best case is Illinois v.
>Lister, 540 U.S. 419 (2004). However, Lister provides very limited
>authority to detain witnesses, and each detention would have to be
>examined on its facts.
>I assume the nightclub case you refer to is Palacios v. Burge, and
>that court found a forced show-up to be constitutional. The court
>mixed the witness line of authority with the suspect line of authority
>and threw in exigent circumstances for good measure. Even that court
>had to limit its holding: "Here, the police knew to a virtual
>certainty that the perpetrators whom they hoped to identify were among
>the patrons and likely to escape, and briefly detaining these patrons
>and instructing them to walk outside, unlike the body frisks in
>Ybarra, was minimally intrusive."
It is effectively a balancing test when exigent circumstances are
involved. The stronger the exigent circumstances, the greater the
degree of infringement of rights is acceptable. By this, I do not
mean to say that simply by invoking "terrorism," the police should be
able to do anything at any time to anyone.
However, in the immediate aftermath of even a failed terrorist attack,
the possibility of other terrorists in the crowd escaping, learning
from their first error, and subsequently successfully perpetrating a
future attack, potentially costing hundreds or thousands of lives,
justifies what essentially amounts to an inconvenience by comparison.
>Although the detention in Flight 253 apparently went well beyond the
>detention in Lister, or even the detention in Palacios, my guess is it
>was still constitutional, but under the border line of cases, as I
>explained in my original post.
I agree, and would not want to see this principle extended to any
circumstances less critically important to the public than the
immediate aftermath of a terrorist attempt.
>Usually, these issues don't arise because most witnesses will
>cooperate with police and don't challenge the police's ability to
>question them.
I am as civil libertarian as you get, and might well object in the
nightclub scenario, or at the very least, immediately contact legal
counsel. However, in the terrorism situation, I would feel it a moral
obligation to help get the SOB(s), and would not mind inconvenience.
Only if the situation turned into some kind of material witness
detention or otherwise unconstitutional detention would I demand
counsel. Of course, in that situation, I might find it difficult to
use my cell phone while being waterboarded.
Bob
>Of course, in that situation, I might find it difficult to
>use my cell phone while being waterboarded.
In California they passed a law prohibiting cell phone use while being
waterboarded. The idea is the harm caused by cell phone use, when
compounded by the comparatively lesser harm of being waterboarded,
could hasten the death of the torturee. This would have at least two
negative effects: (1) the torturee's premature death would not permit
the waterboarders to elicit the information they seek (although they
could still seize the cell phone with its collection of first-class
pictures and movies) and (2) it would eliminate a cell phone
subscriber, thereby reducing the unconscionable profit made by the
cell phone company.
In the beginning, most people complied with the law, but lately I've
noticed that cell phone usage has increased, probably due to lack of
enforcement.
Many Californians, particularly in Southern California, appear to have
confused waterboarding with surfboarding and believe that California
is improperly preventing them from riding the waves while talking on
their cell phones. They are trying to pass an initiative that would
amend the California constitution (currently over 3,000,000 pages and
a few hundred banana peels) to state that using the cell phone while
surfing is a fundamental right. I believe they have already collected
enough signatures to put the initiative on the ballot, although some
of the signatures are watery and hard to read.
Seth
Cy Pres <c.p...@yahoo.com> wrote:
>However, in the immediate aftermath of even a failed terrorist attack,
>the possibility of other terrorists in the crowd escaping, learning
>from their first error, and subsequently successfully perpetrating a
>future attack, potentially costing hundreds or thousands of lives,
>justifies what essentially amounts to an inconvenience by comparison.
And just how would you propose the FBI can distinguish those "other
terrorists" (who haven't done _anything_ other than, perhaps, pay a
little more attention to what was going on than the typical
half-asleep airline passenger) from the rest of the passengers withing
a few hours?
>I am as civil libertarian as you get, and might well object in the
>nightclub scenario, or at the very least, immediately contact legal
>counsel. However, in the terrorism situation, I would feel it a moral
>obligation to help get the SOB(s),
I would agree; but that's independent of Constitutional Rights.
> and would not mind inconvenience.
>Only if the situation turned into some kind of material witness
>detention or otherwise unconstitutional detention would I demand
>counsel. Of course, in that situation, I might find it difficult to
>use my cell phone while being waterboarded.
Which is why I'd advise calling counsel immediately.
Seth
Cy Pres
wrote:
>In article <jnkek5dv1qjlu3iqe...@4ax.com>,
>Cy Pres <c.p...@yahoo.com> wrote:
>>However, in the immediate aftermath of even a failed terrorist attack,
>>the possibility of other terrorists in the crowd escaping, learning
>>from their first error, and subsequently successfully perpetrating a
>>future attack, potentially costing hundreds or thousands of lives,
>>justifies what essentially amounts to an inconvenience by comparison.
>And just how would you propose the FBI can distinguish those "other
>terrorists" (who haven't done _anything_ other than, perhaps, pay a
>little more attention to what was going on than the typical
>half-asleep airline passenger) from the rest of the passengers withing
>a few hours?
By doing exactly what they did--that is, talking to them, making sure
they could identify everyone who was at the scene if they needed to
contact them later, taking notes on what they saw, observing their
demeanor, seeing if they gave away anything obvious, etc.
>>I am as civil libertarian as you get, and might well object in the
>>nightclub scenario, or at the very least, immediately contact legal
>>counsel. However, in the terrorism situation, I would feel it a moral
>>obligation to help get the SOB(s),
>I would agree; but that's independent of Constitutional Rights.
Constitutional rights are somewhat flexible. Not a one of them is
absolute, and all yield to other rights, depending on the situation.
About the only constant is due process, and the amount of process
which is "due" is always situational. For example, the government can
pretty much never execute you without a trial. However, in the case
of a civil war, the government could probably kill you in other ways
without deliberation.