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

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From Truthout

Terrorism Watchlist Can be A Surprise For Most Who Are Listed on it.
Terrorism Watchlist Can be A Surprise For Most Who Are Listed on it.
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The U.S. government has used the post-9/11 war on terror to launch two major wars, mount gunship and drone attacks on several countries, and institute a widespread program of torture and abuse. Casualties of those conflicts number in the hundreds of thousands.

Another casualty of the war on terror is civil liberties. From the USA PATRIOT Act, to warrantless surveillance, to the Muslim Ban, to the use of metadata to spy on people and target for drone strikes, the deprivation of constitutional rights has continued during the Bush, Obama and Trump administrations.

An additional assault on the Constitution is the terrorism watchlist, a federal government database of "known or suspected terrorists." In 2013, there were 680,000 people on the watchlist, called the Terrorist Screening Database (TSDB). By 2017, the number had swelled to 1.2 million, including 4,600 U.S. citizens.

That increase coincided with the Obama administration's expansion of the terrorism watchlist system in 2013. It established a secret process that didn't require "concrete facts" or "irrefutable evidence" to designate someone a terrorist, according to The Intercept. The "March 2013 Watchlisting Guidance" states that even uncorroborated Facebook or Twitter posts may be sufficient to include an individual on the watchlist.

Alarming Consequences of Inclusion on the Watchlist

An individual's listing on the watchlist is provided to many "partners," including federal, state, and foreign government agencies and officials. Inclusion on the watchlist triggers several consequences, including travel restrictions, law enforcement screening and investigations, immigration and visa decisions, credentialing, and military and intelligence functions.

Partners include Customs and Border Protection, the Coast Guard, Transportation Security Administration, the State Department, U.S. Citizenship and Immigration Services, the Department of Homeland Security, the FBI, and Department of Defense. The FBI shares TSDB information with more than 18,000 state, local, city, county, college and university, tribal and federal law enforcement agencies, and 533 private entities. TSDB data is also shared with more than 60 foreign governments.

A federal government agency or foreign government can "nominate" an individual to the TSDB upon a showing of reasonable suspicion, a much lower standard than probable cause. That means a nomination must be based "upon articulable intelligence or information which, based on the totality of the circumstances and, taken together with rational inferences from those facts, creates a reasonable suspicion that the individual is engaged, has been engaged, or intends to engage, in conduct constituting, in preparation for, in aid or in furtherance of, or related to, terrorism and/ or terrorist activities."

In deciding whether or not to accept a nomination, the Terrorism Screening Center (TSC) may consider (but cannot solely base its decision on) an individual's race, ethnicity, religion, or "beliefs and activities protected by the First Amendment, such as freedom of speech, free exercise of religion, freedom of the press, freedom of peaceful assembly, and the freedom to petition the government for redress of grievances."

The TSC may also use an individual's associates, travel history, business associations, international associations, financial transactions and study of Arabic to support a nomination.

An individual can be included on the watchlist even with no evidence that the person committed a crime or will commit a crime in the future. People who have been acquitted of a terrorism-related crime can still be listed.

However, earlier this month, U.S. District Court Judge Anthony J. Trenga of the Eastern District of Virginia struck down the TSDB as a violation of due process in Elhady v. Kable.

Harassment Suffered by Plaintiffs

The 23 plaintiffs in the Elhady case, who are represented by the Council on American-Islamic Relations (CAIR), are U.S. citizens who have not been formally notified by the U.S. government that they are in the TSDB. They have routinely been subjected to additional screening on commercial airplanes when they enter the United States.

While trying to cross the border back into the United States after a short trip to Canada in 2015, plaintiff Anas Elhady was detained for more than 10 hours and repeatedly interrogated about family members and associates. He required emergency medical attention and was taken to a hospital where he was given basic life support.

On prior occasions, Elhady had been detained for seven to eight hours at the border when he attempted to return to the U.S. He was handcuffed, stripped of his belongings, locked in a cell and denied the right to contact his attorney. His phone has been confiscated several times at the U.S. border. Elhady has stopped flying or crossing the border.

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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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