Sep 04 2019

US government blacklisting system is unconstitutional

In an opinion issued late today in Alexandria, VA, US District Court Judge Anthony Trenga has upheld the complaint by 23 victims of US government blacklisting that the system pursuant to which the government has designated them as “suspected terrorists” on the basis of secret algorithms applied to secret datasets, without notice or an opportunity to contest any allegedly “derogatory”  information, does not provide those who are stigmatized, and whose stigmatized status is broadcast to tens of thousands of law enforcement and other government agencies and private entities around the world, with the procedural due process required by the US Constitution.

This decision is one of the most fundamental victories for the rule of law since 9/11.

According to today’s opinion, it is undisputed that the DHS and FBI define anyone who has been arrested or charged with an offense related to terrorism as a “known” terrorist, even if they have been acquitted of that charge.  In other words, the DHS and FBI think that what is “known” is what they believe, not what judges or juries have found the facts to be. That presumption that by definition their secret judgements are more reliable than judicial fact-finding pretty much sums up why this decision is correct, why it is so important, and why it should be upheld if, as seems a near certainty, the government appeals.

None of the plaintiffs have even been arrested, much less convicted, for any criminal offense, terrorist or otherwise. The plaintiffs include, among others, several infants whom the government has apparently blacklisted as “suspected terrorists”. But even though the government will neither confirm nor deny that anyone is or is not, or has or has not been, included in the “Terrorist Screening Database” (TSDB), the court found that the plaintiffs have demonstrated sufficient basis for their belief that they have been blacklisted.

The government calls this database and decsion-making system a “watchlist”, but it is really a blacklist intended and used to determine adverse consequences for individuals.

The “No-Fly List” is only a subset of the TSDB, and not being allowed to fly is only a subset of the consequences of blacklisting detailed in the plaintiffs’ submissions to the court and the government’s admissions during discovery and depositions. The TSDB is used as the basis for a plethora of decisions, as the plaintiffs have experienced, from whether to have them arrested at gunpoint when they try to cross land borders  to whether to interrogate them for hours about their religious beliefs, seize their electronic devices for copying and forensic analysis of the data stored on them, deny them public or private-sector jobs, or close their bank accounts and deny them other fincial services.

The government’s use of secret criteria, secret datasets, and guilt by association as the basis for secret decisions — communicated to tens of thousands of other decision-makers, but not to those who have been blacklisted —  resembles the worst of McCarthyism, just with “terrorist sympathizer” or (literal) “fellow traveler” substituted for “Communist  sympathizer” or (ideological) “fellow traveler”.

Judge Trenga found that inclusion on the TSDB deprives those who are blacklisted of their liberty interest in freedom of movement, both internationally and domestically; that the government stigmatizes them by distributing the blacklist to many other entities; that the secret, standardless, and non-adversarial (i.e. one-sided) decision-making process is inherently likely to result in errors; and that all of this is unconstitutional:

The vagueness of the standard for inclusion in the TSDB, coupled with the lack of any meaningful restraint on what constitutes grounds for placement on the Watchlist, constitutes, in essence, the absence of any ascertainable standard for inclusion and exclusion, which is precisely what offends the Due Process Clause.

We congratulate the plaintiffs for risking retaliation to challenge the government’s supposedly anti-terrorist, and in practice anti-Muslim, witch-hunting program, and  attorneys Gadeir Abbas, Lena Masri, and the rest of CAIR’s legal team for their legal leadership.

Judge Trenga has ordered the parties to submit additional briefs over the next six weeks with respect to what he should order to be done to redress the violations of the plaintiffs’ Constitutional rights that he has found to have occurred and to be ongoing.

We think the answer is clear: the way to provide procedural due process, when the government wants to restrict someone’s movements or other lawful activities, is for the government to apply to a judge for an injunction or restraining order. No new laws or procedures are needed. Courts have procedures for considering requests for orders restricting movement, and act on them every day in domestic violence and other cases.

But the goverment has never tried to use existing laws to request a no-fly injunction o other restraining order against a “suspected terrorist”, preferring to substitute the infallible clairvoyance of the pre-cogs in the Terrorist Screening Center for the fallability of judges and juries using established adversarial fact-finding procedures.

That’s just wrong. What we need is for the courts and the government to follow the Constitution and other existing laws, not to create a new body of laws and procedures to be used only in witch trials or administrative lynchings of “suspected terrorists”.

11 thoughts on “US government blacklisting system is unconstitutional

  1. I can write my comment, but I know that you would not Post it.

    So I will say, don’t count your chickens.

    A revived Patriot Act soon to appear at a theatre near you.

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  3. The Council on American-Islamic Relations (CAIR) will not be an official partner with the U.S. Census Bureau for next year’s national population count.CAIR issued a statement Wednesday touting a formal partnership, which it said aimed “to promote American Muslim participation in the 2020 Census and to better represent the most diverse Muslim population in the world.” The Investigative Project on Terrorism reported the news Wednesday afternoon, noting that federal law enforcement believes CAIR is not “an appropriate liaison partner” due to roots CAIR founders and the organization itself have in a Muslim Brotherhood Hamas-support network in the United States.

  4. Agreed, this is unamerican and unconstitutional to the hilt, but this is just the tip of the iceberg. If there are ONLY 4,600 non-Muslim American citizens on “the list” then I’ll eat my hat. There must be a parallel or off-book watch list or two then since there seems to be hundreds of thousands of regular Americans on some watch list the Fusion Centers are using to send civilian Infragard mercenaries after to smear, harass, stalk, injure, torture, murder. The network is EVERYWHERE. It is a profit machine pretending your neighbors are terrorists then testing out lucrative covert weaponry on them to see how fast or slow you can kill them and reporting back to Military contractors. Telling law enforcement to butt out. “But its ok, that stay-at-home mom whose family arrived here in the 1700’s is a terrorist for sure, right?” DHS/ FBI /FUSION CENTER /INFRAGARD have been conducting an all out war on Americans under this ruse. Thousands of these scum need to be executed for treason. See my articles in Activist Post (3) and on EverydayConcerned(.)net (guest writer) as well as the articles by site owner Ramola D.
    This war machine was and is still coming for all of you. Part of UN Agenda to get the stupid people to exterminate the smart ones by telling and paying the dummies to murder the smart and decent people with weapons like those used on our diplomats in Cuba (2017) and China (2018) that any monkey can operate.

  5. I would also like to add to that from the people dial it responsible for our harm to our bodies are from electronic monitoring frequency weapon why are these even in the US we like to know how do we come forward when the lawyers don’t want to take our cases I’ve had doctors I’ve had my mail broken into drug poison followed in stores or anywhere I want sometimes it would be three or four people officers sitting on the side of my street watching my house this is not America if it can’t stand behind its name Indian name is freedom my freedom and my family freedom has been taken away my mother died from this please put on the death certificates natural causes but it’s not natural causes is from the weapons they use are severely dangerous it eats up your stomach and eats up most of your organs in your body I am lucky to be here because I almost died 2018 in October can we go strictly to a state’s attorney in our state’s or would it have to be a civil rights attorney to prove our cases I myself kissed has all kinds of evidence bees and he put me in a hospital against my own will one one time I had called the police because my house is being vandalized all the time sprayed with chemicals they did not show up yes I’m speaking about police but when I was in another state I was being harassed deer as well this is not Nationwide Citywide Statewide this is worldwide we want our America back

  6. Chicken sh*t editors refuse to post my comment that 100,000’s of real law-biding Americans have been watch-listed to give military, contractors, Feds fake terrorists to try out covert, high tech weapons on. Just like what hit our diplomats in Cuba and China.

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