A Federal judge has ruled that yes, he can review the Constitutionality of Federal blacklists (euphemistically but misleadingly labeled “watchlists”).
That should be an unsurprising finding. But “pre-crime” and predictive policing programs, including decisions to put people on blacklists that are used to control what they are and aren’t allowed to do, have largely operated in secrecy and outside the rule of law.
Rather than defending blacklisting programs or individual blacklisting decisions, the Federal government — under both Democratic and Republican administrations — has consistently argued that it should not be required to disclose, explain or defend these decisions, the identity of the decision-makers, the criteria for their decisions, or the “derogatory” information on which these decisions are purportedly based, either to the people who have been blacklisted or to the courts.
Too often, even sixteen years after 9/11/2001, courts still traumatized by memories and fears of 9/11 have acquiesced to these Executive-branch claims that the conduct of the “war on terror” is exempt from judicial review.
In this context, the decision last week by Judge Anthony Trenga of the U.S. District Court for the Northern District of Virginia, rejecting the government’s motion to dismiss a lawsuit by blacklisted Muslim Americans, is one of the most significant steps to date toward legal accountability for the DHS and its accomplices in the war at home against Americans secretly accused and extrajudicially sanctioned through Federal blacklisting.
The decision comes in a case brought by the Council on American-Islamic Relations (CAIR) on behalf of 24 individuals and as as a class action on behalf of all those who have suffered adverse consequences as a result of arbitrarily and without due process being named on Federal blacklists (“watchlists”) . As we reported when this case was filed last year, it’s the most fundamental challenge to date to the Constitutionality of the entire scheme of DHS and FBI pre-crime blacklists based on secret administrative procedures and algorithms rather than on court orders such as criminal convictions, injunctions, or restraining orders.