In a key victory for American Muslims, a federal court in the Eastern District of Virginia ruled that the terrorism watchlist fails to provide due process and therefore violates the United States Constitution.
Judge Anthony Trenga acknowledged the “administrative process” used to place a person in the Terrorist Screening Database (TSDB), the terrorism watchlist, carries an “inherent substantial risk of erroneous deprivation” of rights.
He recognized that all Americans have a right to international travel as well as a fundamental right to travel within the United States.
Not only can the watchlist undermine these rights when innocent people are listed, but it also can do “reputational harm.”
The FBI shares an individual’s status on the terrorism watchlist “with over 18,000 state, local, county, city, university and college, tribal, and federal law enforcement agencies and approximately 533 private entities through its National Crime Information Center (NCIC), which these law enforcement agencies and private entities then use to screen individuals they encounter in traffic stops, field interviews, house visits, and municipal permit processes.”
What the 500-plus private entities do with the information remains shrouded in secrecy, but the lawsuit did establish that these entities include “police and security forces of private railroads, colleges, universities, hospitals, and prisons, as well as animal welfare organizations, information technology, fingerprint databases, and forensic analysis providers, and private probation and pretrial services.”
“It is easy to imagine completely innocent conduct serving as the starting point for a string of subjective, speculative inferences that result in a person’s inclusion in the Terrorist Screening Database,” Trenga declared.
The Terrorist Screening Center (TSC) may consider a “wide range of factors” when it comes to designating a person for the terrorism watchlist. That could include race, ethnicity, religious affiliation, beliefs and activities protected by the First Amendment, travel history, personal and professional associations, and financial transactions. It is unclear what may be “derogatory” enough to get a person listed.
The Council on American-Islamic Relations (CAIR) filed the lawsuit in April 2016 on behalf of 23 innocent American Muslims. These are individuals who have endured significant harm, which gave them standing to challenge the terrorism watchlist.
“They’ve been handcuffed repeatedly at the border,” CAIR national litigation and civil rights director Lena Masri said. “One has been hospitalized due to confinement conditions at the border. There’s been loss of employment, severe immigration delays, and worst of all, long term separation from their loved ones.”
Over the course of litigation, CAIR attorneys uncovered many secretive aspects of the watchlist, including how 18,000 agencies throughout the country have access to the watchlist and the existence of a previously unknown Watchdog Advisory Council.
The Watchdog Advisory Council is chaired by the Terrorist Screening Center and National Counterterrorism Center. Through the State Department, this watchlist is exported to at least sixty foreign countries, according to CAIR senior litigation attorney Gadeir Abbas.
Those countries share their watchlisting information with the United States and then that information from those foreign government is input into the terrorism watchlist.
“Watchlisting occurs in clusters,” Abbas said. “The FBI field office, for whatever reason, many years ago started focusing on the Oregon Muslim community. We saw watchlisting cases from there. We see a cluster of watchlisting cases from the northern Virginia area.”
Abbas added, “There’s a cluster of watchlisting cases among Muslim community leadership—imams, activists, institutional leaders. Those folks are networked. And so, when one gets watchlisted, your association with that person becomes a basis for your own listing.”
Hassan Shibly, the chief executive director for CAIR’s Florida chapter and a plaintiff in the case, shared what it meant for him to win this victory.
“Since I’ve been a teenager, every time almost that I want to travel I get pulled aside by armed guards, sometimes placed in handcuffs, questioned about my religious beliefs, questioned about my religious practice, treated like a criminal having done nothing wrong,” Shibly declared.
Shibly called it an “extremely traumatizing experience” that was not unique to him but well-known to all American Muslims, particularly during the past 15 years. Which is why he said it was impossible to overstate the significance of prevailing in this lawsuit.
One of the plaintiffs was a four year-old, who was apparently on the terrorism watch list when he was seven months old. “Baby Doe” had his boarding pass stamped with the “SSSS” designation, which indicates a person is a “known or suspected terrorist.” Agents subject the baby to extensive searches, pat downs, and chemical tests. All the items in his mother’s bag were searched, including each of his diapers.
The court asked the plaintiffs and defendants to submit briefs outlining how they would like to remedy the constitutional violations.
What the plaintiffs would like is a notice of removal from the terrorism watchlist as well as a legal mechanism that “affords them notice of the reasons and bases for their placement” on the list. They would like a “meaningful opportunity” to contest their inclusion.
Previously, American Muslims prevailed in cases challenging their inclusion on the No Fly List. In 2014, a federal court in Oregon ruled that 13 U.S. citizens had their due process rights violated and forced the government to confirm—for the first time—whether or not particular persons were on the No Fly List or not.
The following year, the government notified four American Muslim men that they were removed from the No Fly List. They sued the government for allegedly placing them on the list because they refused to become FBI informants.
Most lawsuits have revolved around the No Fly List. This lawsuit challenged the wider system of watchlisting people that was largely established after the September 11th attacks, which disproportionately targets American Muslims. And the court’s decision built on prior litigation against the lack of due process in the system of placing someone on the No Fly List.
As Abbas concluded, the 23 innocent American Muslims who challenged the government’s decision to place them under “permanent suspicion” courageously demonstrated that “the whole watchlist is illegal. Not a small portion of it, not the way [the government does] it. The whole thing, the entire enterprise,” is, in fact, routinely responsible for rights violations.