Federal Judge Rules Terror Watchlist Unconstitutional

September 5, 2019 Updated: September 8, 2019

A federal judge ruled that the government’s Terrorist Screening Database (TSDB), a watchlist of more than 1 million known or suspected terrorists, including only about 4,600 U.S. citizens, violates the constitutional rights of those included in it.

Judge Anthony J. Trenga of the U.S. District Court for the Eastern District of Virginia granted summary judgment to 23 Muslim U.S. citizens who challenged the FBI-administered watchlist with the assistance of the Council on American–Islamic Relations (CAIR), a Muslim advocacy organization with ties to Islamic terrorist groups.

The case is known as Elhady v. Kable.

The 3-year-old lawsuit led government lawyers to acknowledge that upwards of 500 “law enforcement adjacent” private entities have access to the watchlist. Among those entities are university police forces, private security firms, hospitals, and railroads.

Rep. Ilhan Omar (D-Minn.), who is Muslim and a frequent target of President Donald Trump’s tweets, along with 10 other House Democrats, recently wrote a letter to U.S. Secretary of State Mike Pompeo demanding to know how information from the watchlist is shared with foreign governments.

CAIR, which has long accused the government of discriminating against Muslims, hailed the Sept. 4 ruling against the TSDB as a “complete victory.”

Trenga, an Alexandria, Virginia-based appointee of former President George W. Bush, wrote in his decision that “the TSDB fails to provide constitutionally sufficient procedural due process, and thereby also violates” the Administrative Procedure Act.

But Trenga didn’t issue any kind of injunction preventing the government from using the watchlist. After failing to state what remedy would be used to correct the situation, he asked litigants to file additional briefs with the court, due in 30 days, suggesting what should be done.

The plaintiffs claimed they were wrongly included in the TSBD, saying the watchlist is plagued by errors because the government is careless when adding names. The watchlist is shared with numerous governmental departments, foreign governments, and law enforcement agencies.

Gadeir Abbas, an attorney for the plaintiffs, told reporters he will ask the court to dramatically scale back how the watchlist is used.

“Innocent people should be beyond the reach of the watchlist system,” he said. “We think that’s what the Constitution requires.”

The watchlist, the judge pointed out in his ruling, is not to be confused with the No Fly List that prevents commercial air travel within or to the United States. The No Fly List contains about 81,000 names, but fewer than 1,000 are U.S. citizens, Sen. Dianne Feinstein (D-Calif.) said in June 2016. Another FBI-maintained list, the TSA Selectee List, which triggers stricter scrutiny but doesn’t prevent air travel, has about 28,000 names, with fewer than 1,700 U.S. citizens, she said.

The act of being listed in the TSDB “does not prevent [plaintiffs] from boarding flights, but that listing is disseminated to and used by federal, state, and foreign government agencies and officials to support various diplomatic and security functions and does trigger a variety of other consequences, including restrictions on an individual’s ability to travel,” Trenga wrote.

But being wrongly included in the watchlist can lead to great inconvenience and discomfort, the judge noted, explaining that some of the plaintiffs have been handcuffed at ports of entry and often put through invasive secondary inspections at airports.

“There is no evidence, or contention, that any of these plaintiffs satisfy the definition of a ‘known terrorist,” Trenga wrote. And the other reason for inclusion in the watchlist—being a “suspected terrorist”—can easily arise from misunderstandings, he wrote.

The U.S. Department of Justice didn’t respond to a request for comment by The Epoch Times as of press time.