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Illustration by Security Management

Judge Says U.S. Terrorism Watchlist Is Unconstitutional

The database that the U.S. federal government uses to compile its terrorism watchlist violates American’s rights, according to a ruling by a U.S. federal judge.

“The court concludes that the risk of erroneous deprivation of plaintiffs’ travel-related and reputational liberty interests is high, and the currently existing procedural safeguards are not sufficient to address that risk,” wrote Judge Anthony J. Trenga of the U.S. District Court for the Eastern District of Virginia in his opinion.

The ruling stems from a case brought by 23 Americans who said that the government’s inclusion of them on the terrorism watchlist was a violation of their due process rights. They claimed that they were not given notice that they were included on the watchlist or the ability to refute any derogatory information that placed them on the list.

Approximately 1.2 million people—and 4,600 U.S. citizens or permanent residents—are on the terrorism watchlist. Being included on the watchlist does not prevent individuals from boarding flights, but the list is disseminated to federal, state, and foreign government agencies and officials and triggers a “variety of consequences, including restrictions on an individual’s ability to travel,” according to court documents.

Common security measures that are triggered by an individual who is on the watchlist passing through airport security include being denied boarding on international flights, subject to secondary inspection, having their electronic devices searched, and their travel companions advanced searched.

One plaintiff, Anas Elhady, was attempting to return to the United States after traveling to Canada in a car. When he tried to cross the border back into the United States, he was surrounded by Customs and Border Patrol officers, handcuffed, and then held in a room for 10 hours while being interrogated about his family and other connections, according to the lawsuit.

“During this time, Elhady required emergency medical attention and was transported to a hospital, where he was administered Basic Life Support,” the suit said. “Elhady was transported to and from the hospital in handcuffs. On at least two prior occasions, Elhady was detained for approximately seven to eight hours when attempting to cross the border into the United States, and was handcuffed, stripped of his belongings, kept in a cell, and prohibited from contacting his attorney.”

Elhady, and several of the other plaintiffs, had submitted inquiries to the U.S. Department of Homeland Security, which oversees the watchlist, to find out why they were included on the list. They did not receive information back detailing why they were on the list, or information about how to be removed from the list.

In his ruling, Trenga asked the U.S. Department of Justice and the lawyers for the plaintiffs to submit briefings on “what kind of remedy can be fashioned to adequately protect a citizen’s constitutional rights while not unduly compromising public safety or national security.”

Trenga’s opinion built on his previous ruling that struck down the use of the No Fly List to prevent American Gulet Mohamed from boarding a flight home.

“Judge Trenga noted that most of the plaintiffs in the current case did not claim to be on the more restrictive No Fly List, but said their inclusion on the broader Terrorist Screening Database…raised similar issues because of the burden of going through the delays and humiliations of enhanced screenings that led some plaintiffs to avoid traveling,” according to The New York Times.