Sep 13 2017

Federal court can review the Constitutionality of Federal blacklists

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.

The first cracks in the government’s attempts to evade judicial review of extrajudicial pre-crime sanctions occurred in no-fly cases including that of Rahinah Ibrahim (the first no-fly case to come to trial, in which Judge William Alsup in San Francisco found that the no-fly listing procedures lacked the due process required by the Constitution, and violated Dr. Ibrahim’s rights)  and Gulet Mohamed (in which proceedings are ongoing before Judge Trenga in Virginia, who got the case while Mr. Mohamed was still imprisoned abroad for overstaying his visa because the US wouldn’t let him come home).

The government isn’t just passively “watching” people on the no-fly list. The government “watches” for people on the no-fly “watchlist” in order to intercept and block them whenever they try to fly. Denial of travel by air  imposes a sanction that raises issues of due process and other Constitutional rights.  The latest ruling in the watchlist case is one of the first to extend this logic to the range of sanctions imposed through other “watchlists”.

The government has tried to portray these sanctions as “de minimis”, not intefering with rights that are cognizable by the courts, and/or as not rising to the level of violation that would create a legal cause of action.  But in his latest decision, Judge Trenga notes the range of consequences of blacklisting complained of by the plaintiffs in the lawsuit. It’s a useful reminder of the scope of the penalties that are already being imposed on the basis of pre-crime profiling, including not being allowed to test-drive a car (after the car dealership checked the potential purchaser and test-driver’s license with the FBI), not being allowed to send Western Union wire transfers of money, being denied jobs or government licenses or permits required for certain jobs, and being detained at gunpoint and interrogated by local police.

The blacklist/watchlist case is still a long way from a trial, but we are pleased that it has not been dismissed and that Judge Trenga has recognized that the complaint raises issues of potential violations of Constitutional rights over which a Federal court has jurisdiction.