Judge Trenga Rules FBI’s Terrorism Watchlist Unconstitutional

Judge Anthony John Trenga

With the help of the nonprofit Council on American-Islamic Relations (CAIR), a group of 23 American citizens filed a lawsuit in 2016 against the United States Government for being wrongfully placed on the terrorist watchlist. Known as the Terrorist Screening Database, the TSDB is different from the No Fly List, which prevents individuals on that list from boarding a commercial flight. 

According to the FBI’s website, the terrorist watchlist was created after the September 11, 2001 attacks and “…contains sensitive national security and law enforcement information concerning the identities of those who are known or reasonably suspected of being involved in terrorist activities.”

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U.S. District Judge Anthony Trenga ruled on September 4, 2019 that the watchlist of more than 1 million people declared as “known or suspected terrorists” violates the constitutional rights of those placed on the list.

“There is no evidence, or contention, that any of these plaintiffs satisfy the definition of a “known terrorist,” Trenga wrote. 

He stated that when Americans are added onto the Terrorist Screening Database, they are not notified and do not receive an adequate opportunity to challenge their status as suspects. 

“These private entities include the police and security forces of private railroads, colleges, universities, hospitals, prisons, as well as animal welfare organizations; information technology, fingerprint databases, and forensic analysis providers, and private probation and pretrial services,”  Judge Trenga wrote. “The dissemination of an individual’s TSDB status to these entities would reasonably be expected to affect any interaction an individual on the watchlist has with law enforcement agencies and private entities that use TSDB information to screen individuals they encounter in traffic stops, field interviews, house visits, municipal permit processes, firearm purchases, certain licensing applications, and other scenarios.”

Judge Trenga issued a new order in December instructing the government to make amendments to the watchlist. However, he has given them the liberty to draft their own proposal for revisions to submit for his review. 

The Council on American-Islamic Relations expressed their disappointment, saying they anticipate the U.S. Government will attempt to carry on with its unlawful program.

To bring the watchlist in compliance, Judge Trenga ordered the changes to reflect the issues with the due process that people who are placed on the terror watchlist consistently face. Those include inability to establish whether a person has been watch-listed, lack of opportunity to challenge the damaging information which has prompted the placement on the watchlist, and denial of any means to verify the results of status requests or to file an appeal. 

In a recent article published by Yahoo News, it was revealed that despite Judge Trenga’s ruling, an FBI report indicates that state and local law enforcement has been quietly expanding the information of those already in the database and possibly even adding new people onto the list. In addition to collecting intelligence, the government has successfully collected close to 5,000 new “biographical identifiers” which include license, passport, and visa information. Police officers have been instructed to collect information during traffic stops on watch-listed individuals and any other person in the car.

A “First Responders Toolkit” provided to law enforcement instructs them to take “photographs or videos when possible” while being careful not to disclose or record the person’s watchlist status on any documents or reports as “criminal history records are releasable under the public records act.”

“The FBI watch-list document provides further confirmation that the Federal Government is using unreliable and expansive watch lists as an excuse to collect whatever personal data it can from people, the vast majority of whom have done nothing wrong,” said Hugh Handeyside, a senior staff attorney at the ACLU’s national security project.

The one alarming and very troubling fact that very few people are aware of, is that the large majority of the “suspected terrorists” are being routinely and unknowingly placed on the terrorist watchlist without any known or suspected ties to criminal activity. Being related or merely somehow associated with a suspect, can lead to being added to the list. In other words, any innocent law abiding U.S. citizen could suddenly find their lives in turmoil, without any appropriate channels to mitigate or rectify the situation. This should have all of us feeling quite concerned.

Link to Judge Trenga’s Memorandum Opinion and Order

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