‘Total victory’? US terrorist watchlist ruled ‘unconstitutional’ with no remedy in sight

The US government’s list of “known or suspected terrorists” violates the constitutional due process rights of the million-plus people on it, a judge has ruled, but the government insists the case doesn’t belong in court at all.

The watchlist, with no “ascertainable standard for inclusion and exclusion” – one need not have been convicted or even suspected of a crime in order to end up on it, and being acquitted of a crime does not necessarily result in removal – is too vague to risk depriving Americans of their “travel-related and reputational liberty interests,” Eastern District of Virginia Judge Anthony Trenga ruled this week. It violates the due process rights of the 23 plaintiffs represented by the Council on American-Islamic Relations, he declared, granting them summary judgment – but noting that the case “presents unsettled issues.”

Trenga stopped short of recommending a legal remedy, asking both CAIR and the Justice Department – which argued that the watchlist was a national security matter and didn’t belong in court at all – to make recommendations for “what kind of remedy can be fashioned to adequately protect a citizen’s constitutional rights while not unduly compromising public safety or national security” before he lays out the path forward.

“There is no evidence, or contention, that any of these plaintiffs satisfy the definition of a 'known terrorist,'” Trenga wrote in his ruling, noting that immutable characteristics such as race and ethnicity, as well as constitutionally-protected activities including free speech, free exercise of religion, and freedom of assembly, could all be taken into consideration in determining whether a person was placed on the list. Travel history, business associations, and even study of Arabic could also be used to support a nomination – even in the absence of any hint of criminal activity.

Hailing the ruling as a “total victory,” plaintiffs’ lawyer Gadeir Abbas said he would ask the judge to “severely curtail” the use of the list, which CAIR executive director called “effectively a Muslim registry created in the wake of the widespread Islamophobia of the early 2000s.”

Innocent people should be beyond the reach of the watchlist system. We think that’s what the Constitution requires.

The Justice Department had no comment. During the case, its lawyers had insisted the court defer to the executive branch, since national security took precedence over all else.

The Terrorist Screening Database, as it is officially called, has exploded in size since the creation of a special FBI department to house it in 2003, numbering about 1.2 million people as of 2017. While it is maintained by the FBI’s Terrorist Screening Center, other agencies can suggest people to add to the list without explaining why they belong there or providing intelligence to back up their nomination. Individuals on the list are not told of their inclusion, and may never find out unless they end up on the more-restrictive No Fly List and find they’re unable to board their flight.

Since CAIR’s suit was filed in 2016, a number of unsavory details about the list have emerged. The government shares it with over 500 private-sector entities which it describes as “law enforcement adjacent,” including organizations as diverse as university police forces and animal welfare groups. Beyond airport screenings and citizenship evaluations, the watchlist is used to run drivers’ licenses in traffic stops, to determine whether a municipal permit should be awarded, and to conduct background checks for firearm sales. At least 60 foreign governments also have access to the list.

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