As Marjorie Cohn (author, professor, and former president of the National Lawyers Guild) reported in Truthout in September, a federal judge has recently ruled that the U.S.’s “terrorism watchlist,” containing more than a million names, is unconstitutional, at least regarding U.S. citizens on that list.
The federal government shares this “watchlist” (the Terrorist Screening Database, or TSDB) with state and local governments, colleges, universities, tribes, dozens of foreign governments, and 533 private entities. Being on the watchlist means facing travel restrictions, law enforcement screening and investigations, and scrutiny regarding immigration, visas, and some credentialing.
In September, a federal judge in Virginia ruled that the watchlist violates due process because the government fails to give people notice they are on the list and the “evidence” on which inclusion was based. There is no opportunity to rebut the evidence. The case, Elhady v. Kable, involves 23 U.S. citizens, represented by the Council on American-Islamic Relations (CAIR), who have not been formally notified by the U.S. government that they are on the TSDB, but who have been routinely subjected to additional screening when returning to the U.S. after foreign travel.
Under Obama, the watchlist nearly doubled, from 680,000 to 1.2 million people, including 4,600 U.S. citizens. The Obama administration used a secret process, allowing even uncorroborated Facebook or Twitter posts to be the sole “evidence” landing someone on the list. A federal agency or foreign government can nominate someone to the list upon a showing of “reasonable suspicion” that the person “is engaged, has been engaged, or intends to engage, in conduct constituting, in preparation for, in aid or in furtherance of, or related to, terrorism and/or terrorist activities.” This is a much lower standard than “probable cause,” the usual standard for searches or arrests.
Anas Elhady, the lead plaintiff was repeatedly detained for hours when returning to the U.S., handcuffed, locked in a cell, and denied the right to contact his attorney, with his phone confiscated several times at the border. One of these detentions by the federal government, at the Canadian border, lasted over 10 hours and ended with needing emergency medical transport to a hospital.
Judge Trenga held that that the right to international travel is a liberty interest protected by the Fifth Amendment, and therefore cannot be taken away or substantially limited without due process. Due process generally requires prior notice and an opportunity to be heard. “[T]he administrative process used to place a person on the TSDB has an inherent, substantial risk of erroneous deprivation,” the judge wrote. He noted that additional procedures, which are available to people on the “No Fly List,” “would reduce the risk of erroneous inclusion in the TSDB and all the resulting consequences.”
The judge went on to note that the “vagueness of the standard for inclusion in the TSDB” and “the lack of any meaningful restraint on what constitutes grounds for placement on the Watchlist, constitutes, in essence, the ‘absence of any ascertainable standard for inclusion and exclusion,’ which violates the Due Process Clause.”
Judge Trenga wrote: “There is no evidence, or contention, that any of these plaintiffs satisfy the definition of a known terrorist.” Because the list is “a black box,” with no notice to people who are on the list regarding their inclusion on the list or the “evidence” that landed them there, there is absolutely no opportunity to rebut that “evidence.” The judge ruled that, in the context of U.S. citizens, these steps are required for a constitutionally adequate remedy under the Due Process Clause.
The judge concluded, “the risk of erroneous deprivation of Plaintiff’s travel-related and reputational liberty interests is high, and the currently existing procedural safeguards are not sufficient to address that risk.”
The court will now address how to deal with the unconstitutionality of the process after reviewing briefs recently submitted by the parties regarding “what kind of remedy can be fashioned to adequately protect a citizen’s constitutional rights while not unduly compromising public safety or national security.” We’ll keep you posted.