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On Sept. 4, the U.S. District Court for the Eastern District of Virginia issued a decision in Elhady v. Kable—a case that challenges how the federal government manages the Terrorist Screening Database (TSDB), colloquially known as the “watchlist.” Judge Anthony Trenga’s opinion granted the plaintiffs’ motion for summary judgment and found that U.S. citizens included in the TSDB had not been granted a constitutionally adequate opportunity to challenge their status. The court did not rule on the plaintiffs’ proposed preliminary injunction and requested that both parties submit supplemental briefings on the appropriate remedy.
In this opinion, the court decided the plaintiffs’ Fifth Amendment procedural due process claim and their Administrative Procedure Act claim. The plaintiffs contended they were not notified of their placement in the TSDB and were denied a meaningful opportunity to rebut the information that triggered their inclusion. As a remedy, the plaintiffs proposed an injunction that requires the government to remove them from any database that burdens or prevents them from flying or crossing the U.S. border. The proposed injunction would also require the government to provide all individuals on any federal terror watchlist with notice and a meaningful opportunity to contest their placement on that list.
The government maintained that the plaintiffs’ claimed injuries were not sufficiently imminent to support standing and did not amount to a deprivation of a liberty interest protected by the Due Process Clause, and that, even if a liberty interest existed, the Department of Homeland Security (DHS) Traveler Redress Inquiry Program (TRIP) protected it.
The TSDB is a sensitive unclassified list managed by the Terrorist Screening Center (TSC)—an interagency operation within the FBI that includes the DHS, the National Counterterrorism Center, the Transportation Security Agency, and U.S. Customs and Border Protection. As of June 2017, approximately 1.2 million individuals, including 4,600 U.S. citizens or lawful permanent residents, were included in the TSDB.
On April 5, 2016, 23 plaintiffs brought action against Charles H. Kable in his official capacity as director of the TSC. The plaintiffs are U.S. citizens who are routinely subjected to prolonged border interrogations and regular electronic searches when they fly but were never formally notified that they are in the TSDB.
Being placed in the TSDB does not restrict an individual’s movement. But the FBI shares the TSDB with federal, state, local and foreign government agencies to assist their screening processes. Individuals who are in the TSDB can be subject to additional screenings and questioning. Individuals who believe they have been wrongfully placed in the TSDB can seek redress by submitting a Traveler Inquiry Form to TRIP, whose employees then determine whether the individual is in the TSDB and whether the inclusion was an error. Individuals who submit a TRIP form will eventually receive a determination letter stating that TRIP employees investigated the request. But the letter does not disclose whether the individual is in the TSDB.
An individual is added to the TSDB if the TSC has a “reasonable suspicion that the individual is a known or suspected terrorist.” The TSC makes this determination using “articulable intelligence or information” presented by a U.S. government agency or foreign government. An individual’s race, ethnicity, religious affiliation, beliefs, associates, travel history and financial transactions all fall within the scope of the “articulable intelligence or information” the TSC can consider.
After an extensive period of discovery, which required the court to consider what TSDB material was protected by law enforcement or state secret privilege, both parties filed cross-motions for summary judgment and the court heard oral arguments on April 4, 2019.
The Court’s Reasoning
First, the court concluded that the plaintiffs had standing under Lujan v. Defenders of Wildlife because it was sufficiently certain that the plaintiffs would be subject to future concrete and particularized injuries. This conclusion rested on the court’s reasoning in Mohamed v. Holder, in which, standing was granted to U.S. citizens who believed they were on the “no-fly list” and showed that they could reasonably expect to encounter difficulties the next time they tried to board a plane. In this case, the plaintiffs believed the government had added them to the TSDB and demonstrated they could reasonably expect prolonged and unusually intrusive screenings when they attempted to fly or cross the U.S. border.
The court then found that the plaintiffs’ claims were ripe even though some of them had not asked TRIP to review their file. In support of this conclusion, the court returned to its reasoning in Mohamed v. Holder. Generally, ripeness doctrine is based on a court’s assessment of the hardship of the parties, the fitness of an issue for judicial decision and problems with the record’s adequacy. Just like in Mohamed, the court concluded that the hardship on the plaintiffs was great, the issue was fit for a judicial decision and the ambiguous records generated pursuant to a completed TRIP process would not provide the court with essential information.
Judge Trenga then applied the Mathews v. Eldridge framework for determining the constitutional sufficiency of administrative procedures to reject the defense’s remaining two arguments that no liberty interest existed and that, even if it did, DHS TRIP was sufficient to protect it. The Eldridge framework consists of three factors: the private interest affected by official action; the risk of erroneous deprivation of such interests, and the value of additional or substitute procedural safeguards; and the government’s interest in maintaining the current procedures.
On the first factor, the court recognized that the plaintiffs had two significant interests, a movement-related interest and a reputational interest. The court then looked at the risk and effect of erroneously adding someone to the TSDB and the government’s interest in maintaining the status quo. From this, Judge Trenga concluded that the process by which the government placed people in the TSDB involved a substantial risk of erroneously depriving those individuals of significant liberty interests.
Even though inclusion in the TSDB does not constitute a total ban on international or interstate travel, the court observed that regularly subjecting an individual to prolonged and extensive border searches can amount to a de facto ban. In this case, some plaintiffs refrained from traveling internationally because of the difficulties they regularly faced in airports and at the border. The court noted that one plaintiff was handcuffed three times while attempting to cross the Canadian border, and another no longer flies because he is regularly detained for additional questioning and searches.
The court also observed that the dissemination of an individual’s TSDB status to federal, state, local and foreign agents could reasonably be expected to affect any interaction that the individual has with those agents. Using precedent from Mohamed again, the court acknowledged that individuals’ reputational interests are not as strong as their travel-related interests but are, nonetheless, constitutionally protected.
While the court recognized that the government’s objective of stopping terrorist plots was a compelling state interest, it concluded that additional procedures, similar to those made available for individuals on the no-fly list in Latif v. Holder, would not impede that interest and were necessary to reduce the risk of erroneous inclusion in the TSDB. The court stressed that serving TSDB notice and establishing TSDB hearings would ensure that an individual’s liberty interests were sufficiently protected.
However, the court denied the plaintiffs’ request that the government notify individuals prior to placing them in the TSDB. The court observed that such an order would endanger law enforcement officers and risked exposing active terrorist investigations. To support this conclusion, Judge Trenga turned to the Supreme Court’s observation in Gilbert v. Homar that in instances where it would be impractical to provide a pre-deprivation process, a post-deprivation process satisfies the Due Process Clause.
While Judge Trenga granted the plaintiffs’ summary judgment motion, he did not rule on the plaintiffs’ motion for a preliminary injunction. Instead, the court requested additional briefing from both sides on what it should consider to be the appropriate remedy, including whether the post-Latif changes made to DHS TRIP for individuals on the no-fly list could be applied in this case. Judge Trenga’s memorandum opinion and order also directed the parties to use their supplemental briefings to address whether the plaintiffs are entitled to any additional remedies related to their Administrative Procedure Act claims.