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Post-9/11 Terrorism Watchlist of More Than 1 Million Judged Unconstitutional

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Other plaintiffs have been forcibly arrested, often at gunpoint, and detained for many hours in the presence of their families. Plaintiffs' electronics have been seized, searched and copied. Their travel is "regularly and repeatedly disrupted by long and invasive secondary inspections," causing them to miss flights and connections "and sometimes to avoid travel altogether." Some have been denied the right to board flights.

One plaintiff will no longer fly because of "psychological trauma" associated with air travel.

The Right to International Travel Is a Constitutionally Protected Liberty Interest

"There is no evidence, or contention, that any of these plaintiffs satisfy the definition of a known terrorist," Judge Trenga wrote.

The judge was disturbed by the possibility that the trauma plaintiffs had suffered at the border "being surrounded by police, handcuffed in front of their families, and detained for many hours" could be duplicated by law enforcement inside the country.

Judge Trenga confirmed that the right to international travel is a recognized liberty interest protected by the Fifth Amendment, which forbids the government from depriving an individual of liberty without due process that is, notice and an opportunity to be heard. The judge found that being included on the TSDB implicates plaintiffs' strong liberty interests. Inclusion "imposes a substantial burden on the plaintiff's exercise of their rights to international travel and domestic air travel" resulting in a deprivation of their liberty interests "that requires some measure of due process," he wrote.

The judge also determined that "the administrative process used to place a person on the TSDB has an inherent, substantial risk of erroneous deprivation and that additional procedures, similar to those made available to individuals on the No Fly List ... would reduce the risk of erroneous inclusion in the TSDB and all the resulting consequences."

Judge Trenga was concerned that the reasonable suspicion standard for inclusion on the TSDB could well mean that "completely innocent conduct" could lead to "a string of subjective, speculative inferences that result in a person's inclusion."

He found that the "vagueness of the standard for inclusion in the TSDB" combined "with the lack of any meaningful restraint on what constitutes grounds for placement on the Watchlist, constitutes, in essence, the 'absence of any ascertainable standard for inclusion and exclusion,' which violates the Due Process Clause."

Thus, the judge concluded, "the risk of erroneous deprivation of Plaintiff's travel-related and reputational liberty interests is high, and the currently existing procedural safeguards are not sufficient to address that risk."

The judge called the TSDB "a black box" because it does not provide notice of whether an individual was or is still on the TSDB, or the criteria used to make that determination or the evidence utilized. There is no opportunity to rebut the evidence used to include a person on the watchlist. It thus "does not provide to a United States citizen a constitutionally adequate remedy under the Due Process Clause."

The Judge Ordered Parties to Suggest Remedies for Plaintiffs

Judge Trenga granted the plaintiffs' motion for summary judgment, finding that there is no genuine issue of material fact. That means that a reasonable jury could not return a verdict for the defendants.

The judge then ordered the parties to submit supplemental briefs within 45 days, suggesting the appropriate remedy the plaintiffs should receive. The question is "what kind of remedy can be fashioned to adequately protect a citizen's constitutional rights while not unduly compromising public safety or national security."

CAIR National Litigation Director Lena Masri said in a statement, "Today's opinion is a victory for the more than 100 American Muslims we represent and for the thousands of American Muslims who are currently stigmatized by the watchlist."

"The watchlist's arbitrary criteria has long enabled the government to target Muslims based on their faith and then build a secretive network map of their associations," CAIR trial attorney Carolyn Homer said in a statement. "Today, the government's unlawful surveillance of the Muslim community has begun to be curtailed."

Hina Shamsi, director of the American Civil Liberties Union's National Security Project, also praised Judge Trenga's ruling. She wrote 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... There must be a fair and meaningful process for people to challenge wrongful placement on the watchlist and clear their names."

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Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, deputy secretary general of the International Association of Democratic Lawyers, and a member of the National Advisory Board of Veterans for Peace. Her most recent book is Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues. See  (more...)

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