A federal judge in Virginia has it ruled that the government’s terrorism screening database (TSDB) is unconstitutional because people on the list are not given an adequate opportunity to contest their inclusion. The ruling is a victory for a group of nearly 20 Muslim Americans who sued the government over the list in 2016.
“There is no independent review of the placement of people on the TSDB by a neutral decision,” Judge Anthony Trenga wrote Wednesday. “We do not tell individuals whether or not they are or are on the TSDB watch list and we are also not told the true basis for their inclusion.”
As a result, the judge concluded, the list system was untenable.
The government maintains several different lists for suspected terrorists. These include the no-fly list, which, as the name implies, prevents certain people from flying in the US. TSDB is a large list that we believe holds more than a million names. The people on the list are not forbidden to fly, but they can face unpleasant consequences when they travel, especially internationally.
For example, in 2015, one of the plaintiffs, Anas Elhady, returned to the United States by car after a visit to Canada. According to Wednesday’s decision, the American citizen was “surrounded by (Customs and Border Patrol) officials, handcuffed, and then taken to a room where he was held for more than ten hours and repeatedly questioned about your family members and other associates.” During his interview, Elhady “requested emergency medical treatment” so he was taken in handcuffs to a nearby hospital, treated and then brought back in handcuffs.
This is at least the third time Elhady has faced several hours of detention when he tried to cross the border. No criminal charges were filed after any of the interviews.
The government’s position is that it cannot tell Elhady if he is on the terror list because doing so would undermine his counter-terrorism efforts. If he is on the list, he has no way of knowing why he is on the list or of providing information to the government to keep his name—for example, by showing that the government confused him with someone else. . same name.
That, the judge said, contradicts the Constitution, which establishes a proper process for someone to be able to claim his rights—including the right to travel.
The current system “does not provide information about whether a person is included or included in the TSDB, what criteria are used in making that decision, or the evidence used to determine a person’s TSDB status.” The judge concluded that the current system “does not provide an American citizen an adequate constitutional remedy under the Due Process Clause.”
What is not yet clear is how much the government will need to change its plan. Trenga acknowledged that full disclosure—for example, notifying someone once they’ve been added to a list—could endanger national security. So the government will still be able to keep some parts of the list secret.
But the details still need to be worked out. Judge Trenga ordered both sides in the lawsuit to propose changes that could address the system’s constitutional flaws. Based on those proposals, he will make a more detailed judgment in the future. We can still expect the federal government to appeal Trenga’s ruling, so this legal battle is far from over.