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<div class="header reader-header reader-show-element"> <font
size="-2"><a class="domain reader-domain"
href="https://theintercept.com/2019/09/06/terrorism-watchlist-lawsuit-ruling/">https://theintercept.com/2019/09/06/terrorism-watchlist-lawsuit-ruling/</a></font>
<h1 class="reader-title">Secret Terrorism Watchlist Found
Unconstitutional in Historic Decision</h1>
<div class="credits reader-credits">Ryan Devereaux - September
6, 2019</div>
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<p><u>In the dark,</u> 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.</p>
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<p>In the summer of 2014, The Intercept <a
href="https://theintercept.com/2014/07/23/blacklisted/">published</a>
the secret rulebook behind those lists. The 166-page “<a
href="http://s3.documentcloud.org/documents/1227228/2013-watchlist-guidance.pdf">Watchlisting
Guidance</a>” 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.</p>
<p>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.</p>
<p>In a post-9/11 world, this murky system
disproportionately impacted Muslims, though <a
href="https://www.vox.com/2015/12/7/9865756/no-fly-list">U.S.
lawmakers</a> and <a
href="https://theintercept.com/2016/04/06/class-action-suit-targets-system-that-added-a-baby-to-terrorist-watchlist/">infants</a>
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.</p>
<p>“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.”</p>
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<p>The <a
href="https://int.nyt.com/data/documenthelper/1689-terror-watchlist-ruling/75cd50557652ad0bfa2a/optimized/full.pdf#page=1">32-page
decision</a>, 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.”</p>
<p>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.</p>
<p>“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.”</p>
<p>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.</p>
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<p>“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.”</p>
<p>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.”</p>
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<p>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 <a
href="https://law.justia.com/cases/federal/district-courts/virginia/vaedce/1:2011cv00050/261940/257/">found</a>
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.”</p>
<p>“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.</p>
<p>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.”</p>
<p>Hina Shamsi, director of the American Civil Liberties
Union’s National Security Project, whose organization
has leveled its own <a
href="https://www.aclu.org/issues/national-security/privacy-and-surveillance/watchlists">challenges</a>
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.”</p>
<p>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.”</p>
<p>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.</p>
<p>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.”</p>
<p>“Yesterday’s victory,” he added, “makes me proud to
be an American.”</p>
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