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 judgments 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”.