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Federal Judge Declares ‘Terrorist Watchlist’ Unconstitutional

By Kelly Hoggan

The Terrorist Screening Database is used by all government security agencies.

A federal judge on September 4th ruled unconstitutional the government’s list of “known or suspected terrorists” – formally known as the Terrorist Screening Database. The ruling for plaintiffs, who may or may not even be on the ‘terrorist watchlist,’ was delivered by Judge Anthony Trenga of the U.S. District Court for the Eastern District of Virginia, and is a blow to federal government efforts to combat terrorism.

In his decision, the judge noted the plaintiffs didn’t fit the definition of a ‘known terrorist’ and that “there is no evidence, or contention” they would. Opposition to the terrorist screening database – which its opponents claimed mainly centered around due process concerns -- has existed since its creation during the George W. Bush presidential administration.

Trenga’s ruling echoed the due process complaints of plaintiffs, their lawyers and various civil liberties groups who’d helped them bring their case to the federal courts. “An individual’s placement into the [terrorist screening] database does not require any evidence that the person engaged in criminal activity, committed a crime, or will commit a crime in the future,” he said.

The lawsuit had been brought by 23 Muslims who were American citizens and who also claimed they'd been included on the watchlist. Their complaints involved being secretly flagged and placed on the the list without any clear methodology on the part of the government being used. Because of the secrecy attached to the watchlist, government attorneys declined to say if the individuals were or were not, in fact, actually in the database. In bringing their case, the plaintiffs were represented by the Council on American-Islamic Relations (CAIR) and its attorneys, who’d claimed the list amounted to nothing more than a “secret Muslim registry.”

Following the terror attacks of September 11, 2001 the federal government found it needed a way to efficiently share terrorism information with those in the counterterrorism community. In response, the Terrorist Screening Database, or TSDB, was created in 2003. According to the FBI, “the watchlist is a single database that contains sensitive national security and law enforcement information concerning the identity of those who are known or reasonably suspected of being involved in terrorist activities.”

The database’s main purpose is to point out those known or suspected of terrorism and prevent them from “attempting to obtain visas, enter the country, board an aircraft, or engage in other activities.” The government maintains that inclusion on the watchlist comes only when there is reasonable suspicion that a person is a known or suspected terrorist. Also, the feds say, no one on the watchlist is there solely because of their “race, ethnicity, national origin, [or] religious affiliation.” Regular “comprehensive and case-specific quality assurance reviews of data” in the watchlist are also carried out to ensure those included in it truly belong there.

Air travelers on the watchlist who believe they’re being incorrectly included on it can also file redress complaints with the Department of Homeland Security’s TRIP website. Persons denied visas to enter the country can file their redress complaints with the U.S. State Department through its Bureau of Consular Affairs website.

Though the exact number of individuals on the terrorist watchlist is confidential, several thousand Americans have been placed on it since its inception. The watchlist itself is fed from two primary sources: The Terrorist Identities Datamart Environment (TIDE), which contains international terrorist information, and domestic terrorist information from the Federal Bureau of Investigation. In turn, the TSDB is used to compile an array of other watchlists and screening systems, including the well-known No Fly List maintained by the Department of Homeland Security. A June 2016 article at the Washington Times website revealed a total of 81,000 names on that list, of which fewer than 1,000 were Americans.

Kelly Hoggan, Founder and CEO of H4 Solutions, previously served as assistant administrator for operations at the Transportation Security Administration. In that role, he was responsible for aircraft and checkpoint security operations at the nation's 400-plus commercial airports.

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