Judge says watchlist violates rights

WASHINGTON — A federal judge ruled Wednesday that a federal government database that compiles people deemed to be “known or suspected terrorists” violates the rights of American citizens who are on the watchlist, calling into question the constitutionality of a major tool the FBI and the Department of Homeland Security use for screening potential terrorism suspects.

Being on the watchlist can restrict people from traveling or entering the country, subject them to greater scrutiny at airports and by the police, and deny them government benefits and contracts. In a 32-page opinion, Judge Anthony J. Trenga of U.S. District Court for the Eastern District of Virginia said the standard for inclusion in the database was too vague.

As of 2017, about 1.2 million people were on the watchlist, which is maintained by the FBI’s Terrorist Screening Center. Although a vast majority of them were foreigners abroad, about 4,600 were Americans who are protected by the Constitution.

Among them, a group of 19 Americans, represented by the Council on American-Islamic Relations, filed the lawsuit charging that their inclusion violated their due process rights. Recounting tales of being detained and harassed when trying to enter the country, they argued that they did not receive notice of why they were being put on the list or an opportunity to contest derogatory claims.

The judge agreed that the current procedures were inadequate to protect their rights, granting the plaintiffs summary judgment. But he stopped short of saying what should happen next, asking the Justice Department and the lawyers for the plaintiffs to submit briefings on the difficult question of “what kind of remedy can be fashioned to adequately protect a citizen’s constitutional rights while not unduly compromising public safety or national security.”

The Council on American-Islamic Relations hailed the ruling as a “complete victory.”

The government’s use of terrorism watchlists has grown enormously since the Sept. 11, 2001, attacks, and over time, the practice — and the opaque standards and rationales by which people’s names are added to such databases — has come under harsh scrutiny by civil libertarians.

The present case involves a broad watchlist, called the Terrorist Screening Database. It is maintained by the FBI, but other agencies can nominate people for inclusion in the database based on intelligence that may never be shared with them.

A subset of the people on the watchlist are also put on the more restrictive No Fly List, which bars them from boarding planes in the United States or flying through American airspace. In 2014, a federal judge in Oregon ruled that the government’s use of the No Fly List to bar Americans from boarding plans was unconstitutional, requiring the Department of Homeland Security overhauled its Traveler Redress Inquiry Program procedures.

Later that same year, Trenga struck down a use of the No Fly List to keep a particular American, Gulet Mohamed, from boarding a flight home, effectively exiling him. The judge’s ruling about the broader watchlist Wednesday built on his earlier opinion, which he quoted from extensively.

Trenga noted that most of the plaintiffs in the current case did not claim to be on the more restrictive No Fly List, but said their inclusion on the broader Terrorist Screening Database — which he referred to by the initials TSDB — raised similar issues because of the burden of going through the delays and humiliations of enhanced screenings that led some plaintiffs to avoid traveling.

“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,” he wrote, “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.”

He also noted that the terrorism watchlist was used for screening government contractors and was shared with state and local law enforcement agencies, which increases their risk of “being surrounded by police, handcuffed in front of their families and detained for many hours.”

Files released by the FBI in 2011 under the Freedom of Information Act showed that the FBI was permitted to include people on the watchlist even if they had been acquitted of terrorism-related offenses or the charges are dropped.

Trenga was appointed in 2008 by President George W. Bush.

New York Times

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