A federal judge ruled Wednesday that the government’s Terrorist Screening Database, aka the terrorist watchlist, unconstitutionally violates the due process rights of the people on it — but that doesn’t necessarily mean the list is going away. The government and the Council on American-Islamic Relations, the group that brought the case before the judge, have 30 days to propose alternatives, the judge said.
The watchlist, which was created in 2003, is an amalgamation of several federal databases comprised of people the government has deemed “known or suspected terrorists.” But for years, civil rights organizations have warned that more than 1 million innocent people have been added to the list without their knowledge and without an opportunity to appeal the decision — and advocates say the overwhelming majority of those added to the list are targeted because they’re Arab or Muslim.
Carolyn Homer, an attorney with CAIR who represented 23 U.S. citizens who suspected they’d been added to the list, said the government’s position has long been, “You’re not allowed to know if you’re on it, much less why.”
“That’s the fundamental due process problem,” Homer told VICE News. Judge Anthony Trenga of the Eastern District of Virginia agreed in his ruling in favor of CAIR.
“The court concludes that the risk of erroneous deprivation of plaintiffs’ travel-related and reputational liberty interests is high, and the currently existing procedural safeguards are not sufficient to address that risk,” Trenga wrote in his opinion. Put simply, the watchlist, which had ballooned to 1.2 million people as of June 2017, isn’t even that good at identifying terrorists.
The end of the watchlist?
Trenga instructed both CAIR and the government to propose a path forward.
“I think the ball is in the government’s court,” said Carl Tobias, a professor at the University of Richmond School of Law. “They have the burden of persuading the judge that there’s a reason for this list and they can satisfy the Constitution in the way they use it.”
Joshua Stueve, a spokesperson for the United States attorney for the Eastern District of Virginia, didn’t respond to VICE News’ request for comment by press time. But the Justice Department urged the judge to dismiss the case, and the government’s position has long been that the watchlist needs to remain secret for national security purposes, according to the New York Times.
Homer, the CAIR attorney, said the next round of briefings is due in 30 days. “Our fundamental position at CAIR is that no innocent person who has had no connection to criminal activity — has never been investigated or charged or convicted, certainly, of any violent crime — should be on the watchlist,” she said. “We're going to say that there needs to be some form of telling people they're on the watchlist and why, and giving them a remedy, likely in court, to challenge the government labeling them as a suspected terrorist.”
The government maintains that the list needs to remain secret to be effective, but Robert Knowles, an associate professor at the University of Baltimore School of Law, said the watchlist includes hundreds of thousands of people who have no real connection to terrorism.
“It’s both over-inclusive, in that it includes many, many people for whom there’s no credible connection to terrorist activity, and it’s also under-inclusive in that it doesn’t include people the government should be keeping an eye on,” Knowles, who previously represented 16 Yemeni detainees at Guantanamo Bay, told VICE News.
The FBI’s Terrorist Screening Center maintains the list, but other federal agencies like Customs and Border Protection, help enforce it and can “nominate” people it thinks should be added to the list. In practice, people who are added to the watchlist are typically subject to additional screening at airports, pulled aside for hours of intensive questioning by border officers after returning to the country, and often have their computers, phones, or other personal electronics temporarily seized during these encounters. Some people get moved from the watchlist to the “no-fly” list, which means they can’t travel by air to or from the U.S., or even over U.S. airspace.
“The watchlist is strongly based on associational information. When you’re on the watchlist, whenever you cross a U.S. border, CBP grabs your phone and copies the complete contents of your phone,” said Homer, the CAIR attorney. “So CBP will take your complete list of contacts, upload it to an intelligence database, and then nominate your friends and family to the watchlist.”
Being put on the watchlist doesn’t just make it harder to travel: the federal government shares the list with local and state governments and law enforcement agencies, as well as with some private companies. In one instance, a man had his bank account closed after being put on the watchlist.
Knowles said it’s possible that the government could propose an amended watchlist with fewer people on it.
“The remedy would have to be some sort of systematic fix. It would be something that would require a lot of work and a lot of time,” he said. “My guess is that the court would give the government an opportunity — say, over a period of time — to reform the database and put safeguards in place so that it's not including people who don't belong in it.”
Cover: Passengers wait to go through a screening area at Seattle-Tacoma International Airport, Monday, Jan. 4, 2010, in SeaTac, Wash. (AP Photo/Elaine Thompson)