Terrorist watch list deemed unconstitutional

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 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.”

[...]

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.

[...]

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.”

  Intercept

...but hey, do what you want...you will anyway.