Judge Rules Terror Watchlist Violates Constitutional Rights: CAIR Lawsuit

The US government's watchlist of over 1 million people flagged as "known or suspected terrorists" is a violation of their constitutional rights, according to US District Judge Anthony Trenga of Virginia. 

CAIR attorney Gadeir Abbas

In a summary judgement granted to nearly two dozen Muslim US citizens backed by the Council on American-Islamic Relations (CAIR), Trenga concluded that "There is no evidence, or contention, that any of these plaintiffs satisfy the definition of a ‘known terrorist," that the definition of "suspected terrorist" can be misconstrued based on innocent conduct, according to the Seattle Times

"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," wrote Trenga - a Bush II appointee. 

While the ruling was a win for the plaintiffs (CAIR called it a "complete victory"), Trenga is seeking additional legal briefs before deciding what to do about the watchlist itself. 

"Innocent people should be beyond the reach of the watchlist system," said Gadeir Abbas, a lawyer for the plaintiffs. "We think that’s what the Constitution requires."

Abbas said that while there has been significant litigation over the no-fly list, which forced the government to improve the process for people seeking to clear their name from the list, he said Trenga’s ruling is the first to broadly attack the government’s use of the watchlist. Trenga also wrote in his 31-page ruling that the case “presents unsettled issues.”

Ultimately, Trenga ruled that the travel difficulties faced by plaintiffs — who say they were handcuffed at border crossings and frequently subjected to invasive secondary searches at airports — are significant, and that they have a right to due process when their constitutional rights are infringed. -Seattle Times

CAIR executive director Nihad Awad said in a statment that the group's "legal team has finally brought an end to the secretive watchlist, which is effectively a Muslim registry created in the wake of the widespread Islamophobia of the early 2000s."

The FBI maintains the watchlist, also known as the Terrorist Screening Database, across various federal agencies such as US customs, which can cross-reference it for people entering the United States at border crossings. Aviation officials also use the database to maintain the smaller no-fly list. 

As of June 2017, the list included approximately 1.16 million people, up from 680,000 in 2013 according to government documents filed in the lawsuit. Most individuals on the list are foreigners, however there are also around 4,600 US citizens and lawful permanent residents on the watchlist as well. 

Earlier this year Abbas argued that the watchlist is worthless in terms of preventing terrorism, as it did nothing to stop Oralando nightclub shooter Omar Mateen, who killed 49 people in 2016. He was once on the list but later removed. Other terrorists, Abbas said, were never added to the watchlist despite having committed crimes. 

The suit was filed in 2016, and has exposed previously unknown details about the list and how it is disseminated. In particular, government lawyers acknowledged after years of denials that more than 500 private entities are given access to the list. Government lawyers describe those private agencies as “law enforcement adjacent” and include university police forces, and security forces and hospitals, railroads and even animal-welfare organizations.

Abbas said the revelations about the government’s actions have come after years of dismissive responses from government officials who accused CAIR and others of paranoia, and that people are now paying more attention to the civil-rights implications of watchlisting.

As the Times notes, Rep. Ilhan Omar (D-MN) crafted a proposal adopted by the House which would force President Trump's administration to disclose how it shares the watchlist with foreign countries.