Court finally rules: The 'terror watchlist' is unconstitutional

  • Court finally rules what US Muslims knew all along: The ‘terror watchlist’ is unconstitutional

    September 20, 2019
    Court finally rules what US Muslims knew all along: The ‘terror watchlist’ is unconstitutional

    There is no way to officially find out if you are on the watchlist [Getty]


    On 5 September, federal court Judge Anthony J. Trenga ruled that the Terrorist Screening Database (TSDB), popularly known as the “terror watchlist,” violated the constitutional rights of those individuals whose names appeared on it.

    Twenty-three Muslim American plaintiffs, who after enduring scrutiny and interrogation, suspected that their names appeared on the secret list, brought the case against the US government. The ruling was a major victory for them, and the thousands of Muslim citizens included on the watchlist.

    The government will appeal the decision against the watchlist, which the Terrorist Screening Center has used as a pool of possible terrorists to be placed on the restrictive “No Fly List.”

    In his 32 page opinion, Judge Trenga of the Virginia federal court expressed his serious concerns with the secretive nature of the watchlist, which is believed to include 1.2 million individuals and approximately 4,600 US citizens and permanent residents.

    The Terrorist Screening Center, an agency administered by the Federal Bureau of Investigation (FBI), does not disclose the names of those included on the watchlist, even when requested by those suspecting inclusion. This secretive structure leaves no opportunity to challenge or appeal inclusion on the list, which can lead to arrest or intense scrutiny at the border.

    And, because the FBI shares the watchlist with “more than 18,000 state, local, county, city, university and college, tribal, and federal law enforcement agencies and approximately 533 private entities,” it causes considerable damage beyond the realm of travel and airports.


    Being included on the watchlist cracks open a Pandora’s box of personal and professional concerns, which can be as nefarious as driving surveillance within community mosques, or ruining a candidate’s chances at a job interview.

    The only tipoff indicating you could be on the list, is being called in for secondary questioning at the airport, or – as in the case of Anas Elhady, the named-plaintiff in the case – being surrounded by Border Patrol agents, arrested, and relentlessly interrogated for more than 10 hours.

    This stridence on the part of the state reveals what Elhady suspected, that his name appeared among the other 4,600 names of American citizens and residents on the watchlist. For scores of other Arab and Muslim travelers stopped and scrutinised, interrogated and humiliated, this serves as the only notice of inclusion.

    Thursday’s ruling may change that moving forward, and in the process, quell the culture of paranoia that has gripped Arab and Muslim Americans for years.

    It recognises that the FBI’s refusal to provide notice, and an opportunity to challenge inclusion in the watchlist, is a violation of due process.

    Judge Trenga observed that the state, “provides no notice concerning whether a person has been included or remains in the [watchlist], what criteria was applied in making that determination, or the evidence used to determine a person’s [watchlist] status.”

    The ruling opens the door to a range of possible remedies, including amending the process whereby individuals suspecting inclusion can file for disclosure, and challenge their inclusion.

    More ambitiously, the plaintiffs – and the Council of American Islamic Relations (CAIR), the organisation that filed the case – may seek to entirely do away with the watchlist as it stands.

    Beyond process, Judge Trenga took serious issue with predictive design of the watchlist, which in practice, equates with racial and religious profiling.

    Unlike the narrower “no-fly list”, those persons included on the watchlist have committed no wrong, and are placed on it solely because of their religious or racial identity, country of origin, travel history, or other proxies that suggest racial and religious profiling on the part of the FBI.

    Indeed, another principal reason why the FBI is keen on suppressing disclosure of the names that appear on the watchlist is that it will reveal a pattern of religious and racial profiling, which opens the door for additional constitutional challenges being levied against it.

    While the decision will likely be appealed, it marks a watershed moment for the struggle against the crackdown on Arab and Muslim civil liberties.

    Beyond finding that the watchlist smacks against constitutional cornerstones of due process and transparency, Trenga’s ruling calls into question the problematic design of several other counterterrorism programs that punish Muslim citizens and residents under the pretext of terror suspicion.

    Programs like Countering Violent Extremism (CVE), whereby the FBI works closely with local law enforcement to prevent “Islamic extremism” and prevent terrorism, capitalise on the logic of prevention to monitor Muslims that have commit no wrong.

    For decades, the Department of Homeland Security (DHS), the FBI, and increasingly, local police departments, have been granted almost carte blanche and broad latitude within the realm of counterterrorism.

    As a result, the civil liberties of Muslims at travel ports, mosques and colleges, online and deep within their households, have been encroached upon and eroded.

    National security and terror prevention, in short, has been wielded more as a stick than a shield, causing considerable injury to innocuous and innocent people in the name of finding terrorists.

    This decision was a blow against the state-sponsored Islamophobia that has gone unchecked for far too long.

    And indeed, a victory for the very constitutional values that the War on Terror has ravaged for nearly two decades.

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