Stanford Law’s Shirin Sinnar on Constitutionality of Government’s Terrorist Watch List

On Sept 4, the United States District Court for the Eastern District of Virginia ruled that the federal government’s “watchlist,” which includes “known or suspected terrorists,” violates the constitutional rights of American citizens included on it. In the discussion that follows, Stanford Law Professor Shirin Sinnar discusses the decision, the plaintiff’s complaint, and how the law is developing. The interview was conducted and co-posted by Legal Aggregate and Just Security.

What is the terrorist watchlist at issue in this case, and what is the effect of being on the list?

This case concerns the Terrorist Screening Database (or TSDB), which is one of the largest terrorist watchlists compiled by the federal government.  In 2017, a reported 1.2 million individuals were on the list, including 4,600 U.S. citizens.  Federal agencies use it to interrogate and search people at airports and land borders and screen people who apply for visas or citizenship.  They also share the list with foreign governments, 18,000 U.S. law enforcement agencies, and more than 500 private companies, so a person applying for a job with a government contractor or stopped for a routine traffic violation might also be flagged as being on the watchlist.

Previous court decisions finding constitutional violations focused on the No Fly List–a subset of the larger list that bars people from flying altogether.  Yesterday’s decision is significant because it held that the process for including people on the much broader watchlist also violates due process rights.

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Professor of Law Shirin Sinnar

Even for people who aren’t barred from flying, the consequences of being on the watchlist can be severe.  For instance, the court observed that plaintiff Anas Elhady, a U.S. citizen from Michigan, was detained by border officials three times for more than 7-8 hours when returning to the U.S. after traveling abroad.  During these encounters, border agents questioned him and seized and searched his cell phone.  On one occasion, during the middle of a 10-hour interrogation, Elhady required emergency medical attention and was rushed to the hospital in handcuffs to receive life support.

What are the criteria for determining if someone is a “suspected” terrorist? Is that public? And do the people on the watchlist know that they are on it and why?

The standard is vague.  It does not require suspicion of an actual crime.  Rather, a person can be designated if there is “reasonable suspicion” that the person is “engaged in conduct constituting, in preparation for, in aid of or related to, terrorism or terrorist activities.”  The catch-all “related to” opens up the possibility of subjective judgments based on innocent conduct.  As reported in Professor Jeffrey Kahn’s study of the terrorist watchlist, a senior DHS official once stated that bumping into a suspected terrorist at a restaurant might land a person on the watchlist if an FBI agent happened to notice.

In a recent case that the Second Circuit permitted to move forward, several Muslim men in New York and Connecticut alleged that they had been added to the watchlist in retaliation for refusing to become FBI informants.

People do not generally know that they are on the TSDB, let alone why.  The government will not officially confirm or deny a person’s status, with a limited exception for U.S. persons on the No Fly List.  Often, people suspect they’re included because they face repeated scrutiny at airports or borders.

The Council on American-Islamic Relations called it “a Muslim registry created in the wake of the widespread Islamophobia of the early 2000s.” Are Americans on the list predominantly Muslim or of Islamic heritage?

We don’t know who’s on the list since its composition is secret.  Based on the complaints they receive, many civil rights organizations have long suspected that the lists predominantly include Muslims, although journalists and activists of other backgrounds also report watchlist encounters.

Can you explain the key points of Judge Anthony Trenga’s ruling?

The court ruled against the government on both standing arguments and the merits of the plaintiffs’ procedural due process claim.  On standing, Judge Trenga ruled that, even though the plaintiffs don’t know for sure that they’re on the watchlist, they sufficiently established the likelihood of a future injury based on their past experiences and their decisions to refrain from future travel as a result of those encounters.

On the procedural due process claim, Judge Trenga held that inclusion on the watchlist implicated due process liberty interests in international and interstate travel, and to a lesser extent, plaintiffs’ reputations.  That’s a significant ruling in itself, since prior courts like Latif found liberty interests only where individuals were barred from flying.

The court went on to conclude that current safeguards aren’t enough to protect against erroneous watchlisting.  The decision particularly noted the vague standards for inclusion on the list, the lack of a neutral decisionmaker, and the “black box” nature of the complaint process.

It should be noted that Judge Trenga, a George W. Bush appointee, does not reflexively rule for plaintiffs in national security cases.  He ruled for the Trump administration in an early case challenging the travel ban.  He is also attuned to government secrecy assertions, having written a master’s thesis exploring how federal judges approach the state secrets privilege.

In addition, significant though it is, Judge Trenga’s decision doesn’t resolve the million dollar question: what kinds of procedures would satisfy due process?  The court asked the parties to brief that question, including whether the government should extend to these plaintiffs the same procedures it adopted for those on the No Fly List after Latif.  But Latif concerned a smaller number of people subject to a more defined deprivation (prohibition from air travel).  The government will resist providing notice to a larger number of people who have experienced varying levels of harm, even if it seems clear that TSDB listing can have serious repercussions.

This decision may also revive periodic debates over the value of purely internal safeguards, such as review by more neutral decision-makers within the agencies or a system of designating government security-cleared counsel to advocate on behalf of watchlisted individuals.

The plaintiffs in the case charged that inclusion on the list violated their due process rights. Can you talk about their recourse for inclusion on the list and how this case came about?

If a person believes she may be on a watchlist, she can file a complaint with the Department of Homeland Security’s Traveler Redress Inquiry Program (DHS TRIP).  The FBI’s Terrorist Screening Center, which maintains the watchlist, is supposed to review the complaint in consultation with intelligence agencies.  These agencies might change a person’s status in response to a complaint, but they don’t tell the person even after the fact.  Without knowing if or why they’re on the list, it’s exceedingly difficult for individuals to rebut the government’s basis for possible watchlisting.

In response to a 2014 decision from Oregon, Latif v. Holder, the government modified that process for U.S. citizens and permanent residents who remain on the No Fly List after a review of their TRIP complaint.  It will now tell citizens and permanent residents that they’re on the list and, if asked, provide them an unclassified summary of reasons for their inclusion (unless it maintains that national security concerns preclude any disclosure).  But it does not apply that procedure to people who are only on the broader TSDB watchlist.

The case was brought by a group of 23 U.S. citizens on the basis of their constitutional rights, but might this ruling help non-citizen non-residents of the United States?

It might.  The Due Process Clause protects persons, not citizens.  Courts have held that due process rights extend to all persons within the United States, including non-citizens.  For those not within the United States, some individuals with substantial connections to the United States may have some protection.  In 2014, a district court found a due process violation in the case of Rahinah Ibrahim, a Malaysian professor and former Stanford doctoral student who had been barred from flying, and then denied a U.S. visa, on the basis of mistaken inclusion on the No Fly List.

What are the legal next steps? How do you expect this to develop?

The court has ordered the parties to submit additional briefing on remedies, but the government might seek an immediate appeal of this decision.

Shirin Sinnar’s scholarship focuses on the legal treatment of political violence, the procedural dimensions of civil rights litigation, and the role of institutions in protecting individual rights and democratic values in the national security context. Her recent work assesses the legal regime for domestic and international terrorism under U.S. law.

This Q&A was co-posted simultaneously with Just Security