Secret Terrorism Watchlist Found Unconstitutional

In the dark, nearly two-decade long history of America’s war on terror certain initiatives stand out. The rendition and torture of suspected terrorists around the world. Drone warfare. Warrantless surveillance of private citizens. And the creation of watchlists, shadowy and opaque in their construction, with devastating consequences for communities caught in the dragnet.

In the summer of 2014, The Intercept published the secret rulebook behind those lists. The 166-page “Watchlisting Guidance” detailed the process by which the U.S. national security apparatus adds individuals to the Terrorist Screening Database, or TSDB, better known as “the watchlist” from which other lists — such as the no-fly list — are built.

Watchlisting Guidance for suspected terrorists to be added to watchlist: March 2013
A printed version of the “March 2013 Watchlisting Guidance.”
Photo Illustration: The Intercept; Photo: Josh Begley

The document revealed a staggeringly due process-free system in which the government was routinely affixing the word “terrorist” to an individual’s name and disseminating that information to a sprawling network of foreign and private partners, with virtually no evidence required to support the claim.

In a post-9/11 world, this murky system disproportionately impacted Muslims, though U.S. lawmakers and infants were also caught in the mix. Armed with the government’s own rulebook, and the firsthand experiences of nearly two dozen plaintiffs, lawyers at the Council on American-Islamic Relations, or CAIR, began a multiyear challenge to the secretive system. On Wednesday, the attorneys were rewarded a historic ruling, with a federal judge finding that the watchlisting process had violated their clients’ rights.

Hassan Shibly speaking at microphone“I’ve literally never been so happy,” Hassan Shibly, a plaintiff in the lawsuit and attorney at CAIR’s Florida office, said at a press conference Thursday. “For the last 15 years, I, and millions of American citizens like me, have been treated like second-class citizens by the government, and yesterday the court vindicated us. The court said what we’ve been saying all along, what I’ve personally been saying to DHS and CBP and the White House and Congress for the last 15 years: that how DHS has been treating Muslim Americans when they travel, it’s unconstitutional. It’s un-American. It’s unjust. It’s oppressive.”

The 32-page decision, written by Judge Anthony J. Trenga of United States District Court for the Eastern District of Virginia, detailed how individuals can be “nominated” to the watchlist as “known or suspected terrorists” even if there is no evidence the person is engaged in criminal activity, committed a crime, or is expected to commit a crime in the future. Having noted that the watchlist included roughly 1.2 million people as of 2017, among them about 4,600 U.S. citizens or green card holders, Trenga wrote that when it comes to due process, inclusion on the watchlist carries “an inherent, substantial risk of erroneous deprivation.”

The 23 plaintiffs involved in CAIR’s suit are American citizens who, though they do not believe they are on the no-fly list, have experienced intensive screenings at airports and other U.S. ports of entry (a subset of the TSDB known as the “Selectee List” requires precisely those types of screenings). The plaintiffs described hourslong interrogations and in several instances said they had been arrested at gunpoint as a result of their inclusion on the government’s secret lists. Some described serious psychological harm resulting from the experiences and a fear of traveling at home and abroad.

“The general right of free movement is a long recognized, fundamental liberty,” Trenga observed. “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, 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.”

Being added to a watchlist can seriously damage a person’s reputation, Trenga went on to write, describing the cascading effects inclusion on such a list can have on an individual’s interactions with important, often powerful, institutions. When a person is placed on the watchlist (typically unknowingly and frequently without suspicion of links to criminal activity), the judge wrote, that information is shared with more than “18,000 state, local, county, city, university and college, tribal and federal law enforcement agencies,” not to mention an additional “533 private entities” and foreign governments.

“These private entities include the police and security forces of private railroads, colleges, universities, hospitals, prisons, as well as animal welfare organizations; information technology, fingerprint databases, and forensic analysis providers, and private probation and pretrial services,” the judge wrote. “The dissemination of an individual’s TSDB status to these entities would reasonably be expected to affect any interaction an individual on the Watchlist has with law enforcement agencies and private entities that use TSDB information to screen individuals they encounter in traffic stops, field interviews, house visits, municipal permit processes, firearm purchases, certain licensing applications, and other scenarios.”

In other words, Trenga wrote, inclusion on such a widely shared, yet secret and potentially consequential list, raised the possibility that the traumatizing experiences the plaintiffs had at the border and the ports — “being surrounded by police, handcuffed in front of their families, and detained for many hours” — could be replicated in the interior of the country as well. “In short,” he wrote, “placement on the TSDB triggers an understandable response by law enforcement in even the most routine encounters with someone on the Watchlist that substantially increases the risk faced by that individual from the encounter.”

Since The Intercept published the government’s watchlisting guidance five years ago, advocacy groups have steadily chipped away at the system, often in proceedings before Trenga, who was appointed by President George W. Bush in 2008. In 2015, Trenga found that the government’s redress system for getting off of its no-fly list — which is almost as opaque as the system for getting on the list — was constitutionally inadequate. Trenga’s ruling on Wednesday built on those proceedings, which had previously found that the government’s watchlisting category of “suspected terrorists” was “based to a large extent on subjective judgments.”

“There is no evidence, or contention, that any of these plaintiffs satisfy the definition of a ’known terrorist,” Trenga wrote. “None have been convicted, charged or indicted for any criminal offense related to terrorism, or otherwise.” They were instead designated “suspected terrorists,” he wrote, and given the shakiness of that category, they were at a “grave risk” of seeing their rights erroneously deprived.

Ruling that the watchlist “fails to provide constitutionally sufficient due process,” Trenga ordered attorneys for the plaintiffs and the government to file briefings in the coming weeks aimed at providing a remedy that will “protect a citizen’s constitutional rights while not unduly compromising public safety or national security.”

Hina Shamsi, director of the American Civil Liberties Union’s National Security Project, whose organization has leveled its own challenges to the government’s watchlisting enterprise, applauded Trenga’s ruling. “This important decision is exactly right,” Shamsi said in an email to The Intercept. “The government watchlist stigmatizes people as terrorism suspects based on a vague and error-prone standard and secret evidence, and causes real harms. It violates due process. There must be a fair and meaningful process for people to challenge wrongful placement on the watchlist and clear their names.”

Though the task ahead is weighty, with the judge essentially asking the two sides to settle a fundamental question of the post-9/11 era, CAIR is celebrating the ruling as a “complete victory.”

At Wednesday’s press conference, Shibly, who has described being detained more than two dozen times by authorities since turning 18, beamed as he reflected on the personal significance of Trenga’s ruling.

It was his encounters with the watchlisting system, Shibly explained, that inspired him to become an attorney. “Just about every Muslim American that I know is either on the watchlist or knows somebody on the watchlist,” he said. “When we, as American Muslims, are targeted because of our religion, that undermines the freedom for all Americans. So yesterday’s victory was not just one of the greatest victories in the history of the United States for the American Muslim community, but it was in fact one of the greatest victories for all Americans.”

“Yesterday’s victory,” he added, “makes me proud to be an American.”