A federal judge has ruled that the government’s watchlist of over a million people identified as “known or suspected terrorists” violates the rights of American citizens because it lacks constitutionally-enshrined “due process” to justify or challenge inclusion.
On Sept. 4, Judge Anthony Trenga of the United States District Court for the Eastern District of Virginia granted a favorable summary judgment to 23 Muslim U.S. citizens who had challenged their placement on the federal government’s Terrorist Screening Database (TSDB), colloquially known as the “terror watchlist.” People on the watchlist face a range of impediments, including greater scrutiny at airports and by the police. The FBI maintains the list but inclusion can be prompted by other agencies on grounds of opaque evidence and procedures, which federal authorities argue is justifiably secret to uphold national security.
In his ruling, Judge Trenga—who was appointed by George W. Bush in 2008—ruled that while security imperatives justify a certain lack of transparency, the standard for inclusion in the watchlist was too vague and lacked sufficient failsafes to protect citizens’ constitutional rights.
“The court concludes that the risk of erroneous deprivation of plaintiffs’ travel-related and reputational liberty interests is high, and the currently existing procedural safeguards are not sufficient to address that risk,” Judge Trenga wrote in a 32-page opinion (pdf).
‘Adverse Consequences Without a Constitutionally Adequate Remedy’
The judicial opinion included the plaintiffs’ claim that due to their inclusion on the list, they had “suffered a range of adverse consequences without a constitutionally adequate remedy.”
The alleged impacts include “adverse land border crossing experiences,” with such examples given as invasive secondary searches, confiscation of electronic equipment, arrest at gunpoint, being handcuffed, detention in a cell, and denial of the ability to contact an attorney.
Underpinning the claimed impacts is the contention that the plaintiffs “were denied a meaningful opportunity to challenge their presumed placement on the watchlist, or a meaningful opportunity to refute any derogatory information that was used to place them on the watchlist.”
Customs officers have access to the list to check people coming into the country at border crossings, and aviation officials use the database to help form the no-fly list, which is a much smaller subset of the broader watchlist.
The terror watchlist has grown significantly over the years. As of June 2017, approximately 1.16 million people were included, according to government documents filed in the lawsuit, as cited by The Associated Press.
In 2013, the number was only 680,000. The vast majority are foreigners, but according to the government, there were roughly 4,600 U.S. citizens and lawful permanent residents on the watchlist as of 2017.
Security Imperatives and Constitutional Rights
The FBI’s lawyers have argued that the difficulties suffered by the plaintiffs pale in comparison to the government’s interests in combating terrorism.
In the background to his ruling, Judge Trenga expressed sympathy for the need to maintain investigative secrecy so as not to compromise investigations or put agents in danger.
Citing a 2014 court ruling (pdf), Judge Trenga acknowledged that “the Executive Branch must be free to maintain its watchlists in secret, just as federal agents must be able to maintain in secret its investigations into organized crime, drug trafficking organizations, prostitution, child-pornography rings, and so forth. To publicize such investigative details would ruin them.”
Further, in explaining the government’s interest in maintaining the status quo, Judge Trenga noted that “there can be no doubt that there is a profound, fundamental, and compelling government interest in preventing terrorist attacks, including by maintaining and protecting information necessary to prevent such attacks.”
The judge noted a tension between the needs of national security and constitutional right of due process. He expressed support for the current government practice of not providing advance warning of inclusion on the watchlist on grounds of investigation confidentiality on condition that there is a “sufficiently robust” way for people to review and challenge their placement on the terror list.
Judge Trenga wrote that “the court concludes that so long as post-deprivation notice and hearing are sufficiently robust, pre-deprivation notice and hearing are not constitutionally required.”
Federal authorities have maintained that the current process for inquiry and challenge is sufficient, claiming that the Department of Homeland Security Traveler Redress Inquiry Program (DHS TRIP), “as it currently applies to challenges to inclusion in the TSDB is sufficiently robust and adequate.”
DHS TRIP is a process by which people can ask raise questions about their inclusion on the no-fly list “or seek resolution regarding difficulties they experienced during their travel screening at transportation hubs—like airports—or crossing U.S. borders.” However, the DHS TRIP process does not extend to challenging inclusion on the terror watchlist.
The executive branch is against extending DHS TRIP inquiries and challenges—which currently pertain only to the no-fly list—to cover the terror watchlist “because the disclosure of an individual’s TSDB status and/or the reasons for their placement on the watchlist would impair the government’s ‘strong interest in protecting sensitive and classified information related to terrorism.'”
While acknowledging national security imperatives, the judge ruled the process failed to protect constitutional rights.
“DHS TRIP, in its current form, provides no notice concerning whether a person has been included or remains in the TSDB, what criteria was applied in making that determination, or the evidence used to determine a person’s TSDB status,” the judge wrote, adding, “nor does the DHS TRIP process provide the plaintiffs with an opportunity to rebut the evidence relied upon to assign them TSDB status.”
“The court concludes that the TSDB fails to provide constitutionally sufficient procedural due process, and thereby also violates the Administrative Procedures Act,” Judge Trenga wrote.
The judge has not yet determined what remedy to impose, pending further legal briefings. According to a footnote in the opinion, the plaintiffs have explicitly called for a two-fold remedy.
One, they want to be removed from “any watchlist or database that burdens or prevents them from flying or entering the United States across the border.” Two, they want the government to be forced “to provide individuals designated on the federal terror watchlist with a legal mechanism that affords them notice of the reasons and bases for their placement on the federal terror watchlist and a meaningful opportunity to contest their continued inclusion on the federal terror watchlist.”
In bringing their case forward, the plaintiffs were helped by the Council on American-Islamic Relations (CAIR), a civil-rights group.
In a statement, CAIR National Litigation Director Lena Masri expressed support for the ruling.
“CAIR has a half-dozen other watchlist cases pending in federal courts across the country, and this opinion will pave the wave for our continued victories,” she said.
Gadeir Abbas, a lawyer for the plaintiffs, said he will be asking the judge to severely curtail how the government compiles and uses its list.
“Innocent people should be beyond the reach of the watchlist system,” Abbas said. “We think that’s what the Constitution requires.”
The FBI has so far declined to comment on the ruling.