[News] Secret Terrorism Watchlist Found Unconstitutional in Historic Decision

[Anti-Imperialist News]

https://theintercept.com/2019/09/06/terrorism-watchlist-lawsuit-ruling/


  Secret Terrorism Watchlist Found Unconstitutional in Historic Decision

Ryan Devereaux - September 6, 2019
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_In the dark,_ nearly two-decade long history of America’s war on terror 
certain initiatives stand out. The rendition and torture of suspected 
terrorists around the world. Drone warfare. Warrantless surveillance of 
private citizens. And the creation of watchlists, shadowy and opaque in 
their construction, with devastating consequences for communities caught 
in the dragnet.

In the summer of 2014, The Intercept published 
<https://theintercept.com/2014/07/23/blacklisted/> the secret rulebook 
behind those lists. The 166-page “Watchlisting Guidance 
<http://s3.documentcloud.org/documents/1227228/2013-watchlist-guidance.pdf>” 
detailed the process by which the U.S. national security apparatus adds 
individuals to the Terrorist Screening Database, or TSDB, better known 
as “the watchlist” from which other lists — such as the no-fly list — 
are built.

The document revealed a staggeringly due process-free system in which 
the government was routinely affixing the word “terrorist” to an 
individual’s name and disseminating that information to a sprawling 
network of foreign and private partners, with virtually no evidence 
required to support the claim.

In a post-9/11 world, this murky system disproportionately impacted 
Muslims, though U.S. lawmakers 
<https://www.vox.com/2015/12/7/9865756/no-fly-list> and infants 
<https://theintercept.com/2016/04/06/class-action-suit-targets-system-that-added-a-baby-to-terrorist-watchlist/> 
were also caught in the mix. Armed with the government’s own rulebook, 
and the firsthand experiences of nearly two dozen plaintiffs, lawyers at 
the Council on American-Islamic Relations, or CAIR, began a 
multiyear challenge to the secretive system. On Wednesday, the attorneys 
were rewarded a historic ruling, with a federal judge finding that the 
watchlisting process had violated their clients’ rights.

“I’ve literally never been so happy,” Hassan Shibly, a plaintiff in the 
lawsuit and attorney at CAIR’s Florida office, said at a press 
conference Thursday. “For the last 15 years, I, and millions of American 
citizens like me, have been treated like second-class citizens by the 
government, and yesterday the court vindicated us. The court said what 
we’ve been saying all along, what I’ve personally been saying to DHS and 
CBP and the White House and Congress for the last 15 years: that how DHS 
has been treating Muslim Americans when they travel, it’s 
unconstitutional. It’s un-American. It’s unjust. It’s oppressive.”

The 32-page decision 
<https://int.nyt.com/data/documenthelper/1689-terror-watchlist-ruling/75cd50557652ad0bfa2a/optimized/full.pdf#page=1>, 
written by Judge Anthony J. Trenga of United States District Court for 
the Eastern District of Virginia, detailed how individuals can be 
“nominated” to the watchlist as “known or suspected terrorists” even if 
there is no evidence the person is engaged in criminal activity, 
committed a crime, or is expected to commit a crime in the future. 
Having noted that the watchlist included roughly 1.2 million people as 
of 2017, among them about 4,600 U.S. citizens or green card holders, 
Trenga wrote that when it comes to due process, inclusion on the 
watchlist carries “an inherent, substantial risk of erroneous deprivation.”

The 23 plaintiffs involved in CAIR’s suit are American citizens who, 
though they do not believe they are on the no-fly list, have experienced 
intensive screenings at airports and other U.S. ports of entry (a subset 
of the TSDB known as the “Selectee List” requires precisely those types 
of screenings). The plaintiffs described hourslong interrogations and in 
several instances said they had been arrested at gunpoint as a result of 
their inclusion on the government’s secret lists. Some described serious 
psychological harm resulting from the experiences and a fear of 
traveling at home and abroad.

“The general right of free movement is a long recognized, fundamental 
liberty,” Trenga observed. “While inclusion in the TSDB does not 
constitute a total ban on international travel in the same way that 
inclusion on the No Fly List does, the wide-ranging consequences of an 
individual’s watchlist status render it more closely analogous to the No 
Fly List than to the types of regulations that courts have found to be 
reasonable regulations that still facilitated access and use of means of 
travel.”

Being added to a watchlist can seriously damage a person’s reputation, 
Trenga went on to write, describing the cascading effects inclusion on 
such a list can have on an individual’s interactions with important, 
often powerful, institutions. When a person is placed on the watchlist 
(typically unknowingly and frequently without suspicion of links to 
criminal activity), the judge wrote, that information is shared with 
more than “18,000 state, local, county, city, university and college, 
tribal and federal law enforcement agencies,” not to mention an 
additional “533 private entities” and foreign governments.

“These private entities include the police and security forces of 
private railroads, colleges, universities, hospitals, prisons, as well 
as animal welfare organizations; information technology, fingerprint 
databases, and forensic analysis providers, and private probation and 
pretrial services,” the judge wrote. “The dissemination of an 
individual’s TSDB status to these entities would reasonably be expected 
to affect any interaction an individual on the Watchlist has with law 
enforcement agencies and private entities that use TSDB information to 
screen individuals they encounter in traffic stops, field interviews, 
house visits, municipal permit processes, firearm purchases, certain 
licensing applications, and other scenarios.”

In other words, Trenga wrote, inclusion on such a widely shared, yet 
secret and potentially consequential list, raised the possibility that 
the traumatizing experiences the plaintiffs had at the border and the 
ports — “being surrounded by police, handcuffed in front of their 
families, and detained for many hours” — could be replicated in the 
interior of the country as well. “In short,” he wrote, “placement on the 
TSDB triggers an understandable response by law enforcement in even the 
most routine encounters with someone on the Watchlist that substantially 
increases the risk faced by that individual from the encounter.”

Since The Intercept published the government’s watchlisting guidance 
five years ago, advocacy groups have steadily chipped away at the 
system, often in proceedings before Trenga, who was appointed by 
President George W. Bush in 2008. In 2015, Trenga found 
<https://law.justia.com/cases/federal/district-courts/virginia/vaedce/1:2011cv00050/261940/257/> 
that the government’s redress system for getting off of its no-fly list 
— which is almost as opaque as the system for getting on the list — was 
constitutionally inadequate. Trenga’s ruling on Wednesday built on those 
proceedings, which had previously found that the government’s 
watchlisting category of “suspected terrorists” was “based to a large 
extent on subjective judgments.”

“There is no evidence, or contention, that any of these plaintiffs 
satisfy the definition of a ’known terrorist,” Trenga wrote. “None have 
been convicted, charged or indicted for any criminal offense related to 
terrorism, or otherwise.” They were instead designated “suspected 
terrorists,” he wrote, and given the shakiness of that category, they 
were at a “grave risk” of seeing their rights erroneously deprived.

Ruling that the watchlist “fails to provide constitutionally sufficient 
due process,” Trenga ordered attorneys for the plaintiffs and the 
government to file briefings in the coming weeks aimed at providing a 
remedy that will “protect a citizen’s constitutional rights while not 
unduly compromising public safety or national security.”

Hina Shamsi, director of the American Civil Liberties Union’s National 
Security Project, whose organization has leveled its own challenges 
<https://www.aclu.org/issues/national-security/privacy-and-surveillance/watchlists> 
to the government’s watchlisting enterprise, applauded Trenga’s ruling. 
“This important decision is exactly right,” Shamsi said in an email to 
The Intercept. “The government watchlist stigmatizes people as terrorism 
suspects based on a vague and error-prone standard and secret evidence, 
and causes real harms. It violates due process. There must be a fair and 
meaningful process for people to challenge wrongful placement on the 
watchlist and clear their names.”

Though the task ahead is weighty, with the judge essentially asking the 
two sides to settle a fundamental question of the post-9/11 era, CAIR is 
celebrating the ruling as a “complete victory.”

At Wednesday’s press conference, Shibly, who has described being 
detained more than two dozen times by authorities since turning 18, 
beamed as he reflected on the personal significance of Trenga’s ruling.

It was his encounters with the watchlisting system, Shibly explained, 
that inspired him to become an attorney. “Just about every Muslim 
American that I know is either on the watchlist or knows somebody on the 
watchlist,” he said. “When we, as American Muslims, are targeted because 
of our religion, that undermines the freedom for all Americans. So 
yesterday’s victory was not just one of the greatest victories in the 
history of the United States for the American Muslim community, but it 
was in fact one of the greatest victories for all Americans.”

“Yesterday’s victory,” he added, “makes me proud to be an American.”

-- 
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