A lawsuit filed today in Federal District Court in Michigan challenges “the widespread government practice of placing names on watch lists without providing individuals with any notice of the factual basis for their placement and without offering a meaningful opportunity to contest the designation.”
According to the complaint:
This lawsuit is an expression of anger grounded in law. Our federal government is imposing an injustice of historic proportions upon the Americans who have filed this action, as well as thousands of others. Through extra-judicial and secret means, the federal government is ensnaring individuals into an invisible web of consequences that are imposed indefinitely and without recourse as a result of the shockingly large federal watch lists that now include hundreds of thousands of individuals.
These leaked documents, published by The Intercept, make clear that names can be added to “terrorism” watchlists without any individualized basis for suspicion. They also confirmed the overwhelming focus of “terrorist” watchlisting on Arab and Muslim Americans. The leaked documents don’t explicitly categorize watchlist entries by religion or ethnicity, but the correlation is strongly suggested by the fact that more people in Dearborn, Michigan, have been watchlisted than people in any other U.S. city except New York. Dearborn has only 96,000 people, but 40% of them — the highest percentage of any U.S. city — are of Arab descent. Not surprisingly in light of this pattern of watchlisting, the Council on American Islamic Relations (CAIR) has played a leading role in challenges to watchlisting practices and consequences.
Even the government admits, in its “Watchlist Guidance”, that watchlisting has consequences. These consequences aren’t limited to “watching” (surveillance), but include other restrictions on the actions of “watchlisted” (i.e blacklisted) individuals. As the complaint in today’s Michigan lawsuit notes:
These consequences include the inability to fly on airplanes, to go through security without having all screeners receive a message for the remainder of your life that you are a “known or suspected terrorist,” to obtain licenses, to exercise your Second Amendment right to own a firearm, and to be free from the unimaginable indignity and real-life danger of having your own government communicate to hundreds of thousands of federal agents, private contractors, state and local police, the captains of sea-faring vessels, and foreign governments all across the world that you are a violent menace.
To date, most watchlist-related litigation has focused primarily on those consequences, rather than on the watchlisting per se. (One notable exception was the challenge under the Privacy Act by Julia Shearson, Executive Director of CAIR’s Cleveland chapter, to her placement on terrorist watchlists.)
Pending lawsuits, for example, include several challenges to denial of air travel based on entries on the “no-fly” list, a challenge to a watchlist entry directing the detention of a political protester not subject to an arrest warrant or other judicial order, and the denial of citizenship, residency (green cards), and visas based on watchlist entries not based on the criteria in immigration law for such denials.
The imposition of these consequences without due process is wrong. But extra-judicial watchlisting is also wrong, in and of itself, because of the essentially limitless potential it creates for subsequent abuse and discrimination against watchlisted individuals, regardless of the original intend of the list-makers.
The lawsuit filed today by CAIR’s Michigan chapter is interesting and important as a challenge to the watchlisting system itself. We’ll be following it closely.