Aug 31 2018

A broader legal challenge to Federal blacklists

1. The federal government has imposed a kind of second-class citizenship on the Plaintiffs. Without charges, without arrests, without even an investigation sometimes — the agency defendants act in concert to deprive thousands of innocent Americans, mostly Muslim, of their right to be free from a government that extrajudicially designates them as worthy of permanent suspicion.

2. That permanent suspicion has sweeping consequences for the Plaintiffs as well as the more than one million others who bear it. They are separated from their children, denied employment opportunities, prevented from traveling by air to attend weddings and funerals, and denied or delayed immigration benefits. The rights of Plaintiffs to purchase firearms, to wire money and keep a bank account, to receive their passports and be granted visas to foreign countries are all constrained. For one plaintiff, the Defendants’ actions have diminished his standing and ability to provide religious leadership to his community.

3. Through an interagency watchlisting system, led by Defendants’ Watchlisting Advisory Council, the Defendants have identified the Plaintiffs as worthy of permanent suspicion, imposing burdens and disabilities on them in all aspects of their lives.

4. In deciding to target the Plaintiffs, the watchlisting system behaves lawlessly, acting in the absence of and — in some ways — in opposition to what Congress requires of its agencies.

5. To identify its targets, some parts of the watchlisting system, such as the Terrorism Screening Database (“TSDB”), utilize a nonsense-on-stilts standard that is always satisfied. Other parts, such as TSA’s Quiet Skies initiative, do not use any standard and instead rely upon the inarticulate hunches of federal officials, rank profiling, and vulgar guilt-by-association practices.

6. Through their watchlisting system, the federal government makes it known — to every law enforcement agency in the country, every part of the federal government, more than 60 foreign countries, an unknown number of private companies, international bodies, and other third parties—that the Plaintiffs should be treated as dangerous threats. The Plaintiffs’ friends, family, and others with whom the Plaintiffs associate are punished for their relationship with a watchlisting system’s target.

So begins the complaint filed earlier this month in Federal court in Maryland in the broadest legal challenge to date to the US government’s sweeping program of extrajudicial blacklisting and restriction of the rights of US (and foreign) citizens.

As we noted when the predecessor to this lawsuit was filed two years ago by the same legal team with the Council on American Islanic Relations (CAIR), the term “watchlist”, as used by the US government, is a euphemism for “blacklist”.

“Watchlists” aren’t just used as inputs to the algorithms used to decide who to watch, i.e. for targeting of surveillance and searches. “Watchlists” are also used as all or part of the basis for extrajudicial administrative decisions to impose adverse consequences on individuals, i.e as blacklists. “Watchlists” are also communicated to third parties, including foreign governments and Federally regulated financial services providers, airport operators, and airlines, with the intent (in which the government usually succeeds) to stigmatize blacklisted individuals and to induce these other entities to impose adverse consequences including denial of services.

The class action lawsuit filed by CAIR in in 2016, originally “Elhady et al. v. Piehota at al.” and now “Elhady v. Kable”, named as defendants the directors of the Terrorist Screening Center and the National Counterterrorism Center. That case has survived the government’s attempt first to claim that the court had no authority to review the Constitutionality of “watchlisting” program or “watchlisting” decisions, and then to claim that the entire subject of “watchlists” was a “state secret”  exempt from judicial review.

(Attorney General Jeff Sessions filed a declaration in support of the “state secrets” claim, just as Attorney General Eric Holder had filed a similar declaration claiming that it would jeopardize national security to disclose the reason Dr. Rahinah Ibrahim had been placed on a no-fly list — even though Holder’s department knew that the real reason for Dr. Ibrahim’s blacklisting was that an FBI agent had checked the wrong box on the watchlist “nomination” form. In light of this pattern of abuse of state secrets claims to hide government misconduct, little weight should be given to Sessions’ latest claims.)

As the Elhady v. Kable case has moved slowly but steadily toward trial, discovery and depositions of government witnesses have provided an unprecedented amount of information about how the US government’s blacklisting system works.

Government witnesses ascribed watchlisting decisions to an inter-agency “Watchlisting Advisory Council” with more than 20 members, operating by consensus. Everyone on the committee is responsible, but nobody is individually responsible — just as no individual member of a firing squad can be picked out as the one who fired the fatal bullet.

Last month, Federal Air Marshals blew the whistle on yet another TSA program that incorporates its own watchlist, “Quiet Skies”. That program and watchlist had been kept secret from the plaintiffs in Elhady v. Kable , even when it would have been responsive to interrogatories and questions during depositions of government witnesses.

In response to the revelation of the existence of the “Quiet Skies” watchlist, attorneys for the plaintiffs in Elhady v. Kable filed a new motion, which has already been granted in part, for additional depositions and discovery about “Quiet Skies”.

The TSA’s first response to this motion contains some additional information about “Quiet Skies”, but asserts that  “the rules that are used to designate airline passengers for enhanced screening… constitute TSA final orders exclusively reviewable in a U.S. Court of Appeals pursuant to 49 U.S.C. § 46110.” If that claim is upheld, it would exempt these secret “orders” — the rules used for algorithmic profiling and assignment of adverse consequences — from the jurisdiction of any US District Court. That would be an extremely disturbing precedent against judical review of algorithmic decsion-making.

CAIR also filed a new, broader lawsuit, “El Ali v. Sessions”, this time in US District Court in Maryland, incorporating the new disclosures about “Quiet Skies” and naming as defendants all of the two dozen members of the Watchlisting Advisory Council.

As the new complaint notes with respect to the first-named defendant, Attorney General Sessions in his official capacity as head of the Department of Justice (DOJ):

The DOJ is a regular agency attendee of the Watchlisting Advisory Council (“WLAC”), a government agency that promulgates decisions regarding all policies, procedures, practices and instructions pertaining to the federal terrorist watchlist, including, but not limited to: (1) watchlist nomination and removal procedures; (2) specific criteria used to nominate persons to the TSDB; (3) redress procedures; (4) vetting of information used to nominate persons to the TSDB; and, (5) dissemination of a person’s designation in the TSDB to state and local authorities, courts, foreign governments, private corporations, private contractors, airlines, gun sellers, financial institutions, the captains of sea-faring vessels, and others. The DOJ is represented at WLAC meetings by the Federal Bureau of Investigation (“FBI”); the Terrorism Screening Center (“TSC”) (one of two cochairs of the WLAC); and various USDOJ headquarters offices, including the National Security Division (“NSD”); the Office of Legal Policy (“OLP”); and the Office of Privacy and Civil Liberties (“OPCL”). Because the WLAC operates by consensus, the DOJ and/or its agency subcomponents have both decision-making authority and veto power over all decisions made by the WLAC. Upon information and belief, the DOJ and/or its agency subcomponents accepted the nominations of some or all of the Watchlisted Plaintiffs and continues to accept the nominations of other similarly situated American citizens, to the federal terrorist watchlist. The DOJ and/or its agency subcomponents also oversee the dissemination of the “known or suspected terrorists” stigmatizing label attached to the Watchlisted Plaintiffs and other similarly situated American citizens to state and local authorities, courts, foreign governments, private corporations, private contractors, airlines, gun sellers, financial institutions, the captains of sea-faring vessels, and others. Additionally, DOJ utilizes the TSDB in order to screen persons against it that are applying for security clearances or employment to work with DOJ and/or its agency subcomponents in order to deny them employment.

We welcome and fully support these lawsuits. Congratulations to the courageous plaintiffs and to Gadeir Abbas, Lena Masri, and the rest of the CAIR legal team. Blacklisting is wrong.

Adverse consequences, especially when they entail deprivations of rights such as the right to freedom of movement, should be assigned only by judicial order. Such a no-fly order or other injunction or restraining order should be issued only on the basis of due process including notice to the person whose exercise of rights is proposed to be restricted and an opportunity for due process including the right to see evidence, confront and question witnesses,  and have the facts determined by a judge, not by an algorithm, by an unnamed administrative official, or by “consensus” of a hydra-headed inter-agency committee.

That’s the way injunctions and restraining orders (including those restricting movement) are already routinely issued in hundreds of thousands of domestic violence cases, many of them involving credible and immienent threats to life and limb. There’s no reason not to apply these exsiting, well-established procedures to no-fly orders and other decisions to impose the sorts of consequences that are currently made through “watchlisting”.

As El Ali v. Sessions makes clear by naming each member of the Watchlisting Advisory Council as a defendant, each member of that Council has an individual responsibility to withdraw from the “consensus” that allows the current blacklisting system to continue.

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