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It’s About Time a Federal Judge Declared the ‘Terrorist Watchlist’ Unconstitutional

A landmark ruling this week may finally limit the government’s arbitrary and capricious tracking system.

September 6, 2019

On a 2004 trip from one U.S. city to another, my son evid­ently made it onto some kind of terror­ist watch­list. Both at the airport from which we depar­ted, and then at the one we left on the way home less than one week later, he was flagged by airline staff and then we both were ques­tioned, briefly, by what I recall were a few offi­cial-look­ing, stern people. Ulti­mately, my son was deemed not to be a terror­ist and was cleared for travel. No harm, no foul — and he had no idea what the fuss was about. He was 5 years old.

That epis­ode was the first thing I thought about Wednes­day night when the news broke that a federal judge in Virginia had struck down the govern­ment’s main “watch­list” as an undue burden on the consti­tu­tional rights of U.S. citizens. I thought about my son, and about how Sen. Edward M. Kennedy famously made it onto the No Fly List around the same time, and about how so many of us way back in 2004 joked about what a “joke” the watch­lists were. How incom­plete, inac­cur­ate, and rife with bureau­cratic miasma and law enforce­ment excess. 

Since the terror attacks of Septem­ber 11, 2001, thou­sands of other Amer­ic­ans — non-terror­ists, too — have been unfairly placed on these secret lists without a mean­ing­ful chance to get off them. They’ve had their travel inter­rup­ted, or worse, based on inform­a­tion no one beyond law enforce­ment has ever seen. In most cases, advoc­ates say, those targeted have been citizens of color, or citizens who prac­tice their Muslim faith, or those who hail from or travel to Middle East­ern coun­tries. In many cases, they’ve been unjustly targeted.

“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,” wrote U.S. District Judge Anthony J. Trenga. His decision this week is a land­mark event in the “war on terror” whether or not it ulti­mately is affirmed on the appeal that surely will follow from the Justice Depart­ment. It is a big deal even though Trenga, appoin­ted by George W. Bush, himself raised ques­tions about what possible remedy makes sense here.

We don’t talk or think as much about the “watch­list” as we did all those years ago. The feds don’t stop my son when he travels to and from college. In fact, in the wake of Trenga’s ruling, I am surprised and disap­poin­ted that it’s taken this long for the federal courts to recog­nize the magnitude of the consti­tu­tional prob­lems that exist when so much surveil­lance is done in such secrecy for so long, with insuf­fi­cient chance given to the accused to defend them­selves either before or after they’ve been punished, or “nomin­ated” as poten­tially danger­ous. 

There actu­ally are several lists. There is the broader Terror­ist Screen­ing Data­base, which casts a wide net across federal law enforce­ment agen­cies. As of June 2017 the list reportedly had at least 1.2 million names on it, includ­ing some 4,600 Amer­ican citizens and legal resid­ents. There’s also the narrower No Fly List, which was deemed consti­tu­tion­ally flawed five years ago in a ruling by a federal judge in Oregon. I assume my son was on the narrower list all those years ago, but who really knows? One of the main prob­lems with the watch­list system is that it’s shrouded in secrecy.

Trenga’s decision Wednes­day focuses on the legal fail­ings of the broader data­base — another reason why the ruling is a historic event — and on what he views as the federal govern­ment’s continu­ing inab­il­ity to ensure the list’s accur­acy and reli­ab­il­ity, to the extent that that’s even possible. As is often the case, the judge found that the feds had sabot­aged their own argu­ments in defense of the data­base by the way they deployed it. No “neut­ral decision-maker” is in place, for example, to review “nomin­a­tions” onto the list. 

There were 19 plaintiffs in the case, repres­en­ted by the Coun­cil on Amer­ican-Islamic Rela­tions, and they deserve credit for stick­ing with their case and their cause all these years. At airports and other ports of entry, these Amer­ic­ans have been houn­ded and hassled, over and over again, by federal agents. For example, one plaintiff, Anas Elhady, was reen­ter­ing the United States from Canada by car follow­ing a brief trip in 2015, when he was surroun­ded by Customs and Border Protec­tion officers, hand­cuffed, and inter­rog­ated for 10 hours.

Elhady suffered a medical emer­gency during that epis­ode and was trans­ferred to and from the hospital in hand­cuffs. On other occa­sions when he attemp­ted to cross the border, with all of the paper­work neces­sary to do so, he was “hand­cuffed, stripped of his belong­ings, kept in a cell, and prohib­ited from contact­ing his attor­ney,” Trenga noted in his decision. Other plaintiffs allege similar acts by federal agents. They also allege the govern­ment failed or refused to explain why they had made the “list” or why they could­n’t be removed from it. Orwellian is one word for this.

It is likely that Judge Trenga was aided in his under­stand­ing of the flaws in the govern­ment’s program by journ­al­ists and advoc­ates who years ago exposed some of the secret (and often dubi­ous) justi­fic­a­tions federal agents used to include people onto the lists. Through three success­ive admin­is­tra­tions, both Repub­lican and Demo­cratic, the feds tried to hide their rationale from the Amer­ican people, citing national secur­ity and the broader need for secrecy in the endless war on terror now enter­ing its second gener­a­tion.

The Trump admin­is­tra­tion surely will fight back against Trenga’s ruling and hope they can maneuver the dispute onto the Supreme Court, where they pray an archly conser­vat­ive major­ity, eager to defer to the exec­ut­ive branch on matters of coun­terter­ror­ism, will slap down Trenga and resus­cit­ate the watch­list. Maybe yes and maybe no. Maybe Justice Neil Gorsuch eschews his liber­tarian lean­ings and sides with the govern­ment or maybe he does­n’t. Maybe Chief Justice John Roberts sticks up for due process or maybe he does­n’t.

It really does feel like 2004, does­n’t it, when another Repub­lican admin­is­tra­tion coun­ted on another conser­vat­ive Supreme Court to rubber stamp another victory in the war on terror. 

The big case then, Hamdi v. Rums­feld, centered around whether the govern­ment could keep U.S. citizens desig­nated as “enemy combatants” in that war on terror detained indef­in­itely without due process at the milit­ary base at Guantanamo Bay, Cuba. But it gener­ated instead a sting­ing consti­tu­tional defeat for the Bush admin­is­tra­tion and the unfor­get­table line from the Repub­lican appointee, Justice Sandra Day O’Con­nor, who said: “a state of war is not a blank check for the pres­id­ent when it comes to the rights of the nation’s citizens.”

The views expressed are the author’s own and not neces­sar­ily those of the Bren­nan Center.