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Court condemns secret watchlist for Muslims

By Brian E. Muhammad -Contributing Writer- | Last updated: Sep 19, 2019 - 1:45:05 PM

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A federal judge ruled United States government use of a secret “watchlist” of more than one million people identified as “known or suspected terrorists” violates the constitutional rights of those listed.

In a decision Sept. 4, Judge Anthony Trenga of the United States District Court in Virginia granted a summary judgment to 23 Muslim American citizens who challenged the list and its negative impact on their lives.

The decision sprang from a lawsuit filed by the Council of American-Islamic Relations (CAIR) in April.

“Today’s opinion is a victory for the more than 100 American Muslims we represent and for the thousands of American Muslims who are currently stigmatized by the watchlist,” said Lena Masri, CAIR national litigation director in a statement.

The watchlist, officially called the Terrorist Screening Database, was established following September 11, 2001 that killed 3,000 people. It is maintained by the Federal Bureau of Investigation. Many see the database as an unconstitutional policy that erodes American civil liberties.

“Every step of this case revealed new layers of government secrets, including that the government shares the watchlist with private companies and more than 60 foreign countries,” said CAIR senior litigation attorney Gadeir Abbas.

“CAIR will continue its fight until the full scope of the government’s shadowy watchlist activities is disclosed to the American public,” he said.

Observers say the watchlist is reminiscent of the 1950s McCarthy era when Americans were branded communist and subjected to government scrutiny and witch hunts.

The secret watchlist targeted Muslims and branded them terrorists. Critics of the watchlist described it as a “Muslim registry” created in the wake of widespread Islamophobia in the early 2000s.

The FBI shares an individual’s status with over 18,000 state, local, county, city, university and college, tribal, and federal law enforcement agencies and approximately 533 private entities for law enforcement purposes. These private entities include the police and security forces at private entities like railroads, colleges, universities, hospitals, and prisons. The status is distributed to fingerprint databases, forensic analysis providers and private probation and pretrial services.

The way the government administered the watchlist caused significant “reputational harm” to individuals, Judge Trenga wrote.

“There is no evidence, or contention, that any of these plaintiffs satisfy the definition of a ‘known terrorist,’” wrote Judge Trenga. “None have been convicted, charged or indicted for any criminal offense related to terrorism, or otherwise.”

The judge further wrote the plaintiffs were labeled “suspected terrorists,” which placed them at a “grave risk” of being wrongly deprived of their rights.

As of 2017, the watchlist had an estimated 1.16 million people, including 4,600 Americans. The U.S. government does not notify a person when placed on or removed from the watchlist. In addition, the government doesn’t disclose what evidence and criteria was used to determine a person should be added to the list.

Another issue Judge Trenga raised was how the process denied people an opportunity to refute government claims against them, and did not provide a “constitutionally adequate” remedy.

Those on the watchlist are routinely subjected to additional screening when flying commercial airplanes and when entering the U.S. at a land border or port.

Although the frequency and invasiveness of secondary screenings varied, plaintiffs in the suit contended that their inclusion in the Terrorist Screening Database led to a range of adverse consequences. Some cited excessive delays and questioning by border agents, targeted electronic screenings at airports and adverse immigration encounters.

The court document cited the example of Anas Elhady—a plaintiff in the suit who now refrains from exercising his right of international travel to avoid going through such experiences again.

While attempting to return to the U.S. by car after a brief trip to Canada in April 2015, he was surrounded by Customs Border Patrol officers, handcuffed, and escorted to a room where he was repeatedly interrogated for more than 10 hours about family members and other associates.

During his detainment, Mr. Elhady experienced a medical emergency and was transported to a hospital in handcuffs where he was administered basic life support. This was not the first time.

The court document revealed on two prior occasions Mr. Elhady was detained for up to eight hours at the border, handcuffed, stripped of his belongings, placed in a cell, and prohibited from contacting his attorney. This is a common experience for those on the government watchlist.

The FBI declined comment on the ruling. Their lawyers contended in court that difficulties suffered by the plaintiffs pale in comparison to the government’s interests in fighting “terrorism.”

Opponents of the secret watchlists long complained their use allowed for warrantless surveillance of citizens and violating an individual’s right to due process.

The ruling is seen as a legal milestone and a positive precedent for several comparable cases pending in courts across the country.

“The watchlist’s arbitrary criteria has long enabled the government to target Muslims based on their faith and then build a secretive network map of their associations,” said CAIR trial attorney Carolyn Homer. “Today, the government’s unlawful surveillance of the Muslim community has begun to be curtailed.”