After Declaring Terrorist Watchlist Unconstitutional, Judge Backpedals

By Janet Phelan

In a widely reported decision last September, Federal Judge Anthony Trenga declared that the Terrorist Watchlist was unconstitutional. Now, however, Judge Trenga appears to be mitigating his original decision.

The case was brought by the Council on American-Islamic Relations (CAIR), which represented  23 Muslim plaintiffs who claimed that their civil rights were violated by their being placed on the watchlist. According to the lawsuit, the individuals suffered in a variety of ways, including experiencing problems in airports. The lawsuit claimed that the difficulties in travel were only the tip of the iceberg, however, and that “they have suffered a range of adverse consequences without a constitutionally adequate remedy.” These adverse circumstances include a broad range of impacts, including employment issues, law enforcement treatment, vetting and credentialing, among others.

The Terrorist Watchlist (TSDB) is maintained by the FBI and, according to statements filed in this case, includes over 4600 American citizens. This figure has been met with incredulity by a number of individuals, including ex-NSA analyst Karen Melton-Stewart, who believe that the number of Americans watchlisted is far higher.

In the course of the lawsuit, the US disclosed that it had given the list to over 500 private entities, including universities, hospitals and animal rights groups.

After his decision in September that the Watchlist is unconstitutional, Judge Trenga asked for briefs from both sides—CAIR and the government—as to what might replace this.

WATCH THIS CASE AS IF YOUR DEMOCRACY DEPENDED ON IT

The response from the Department of Justice should be read by every American who still believes in the separation of powers and of equal treatment under the law.  First, in a broad misstatement of judicial review, the DOJ informed Judge Trenga that he did not have the latitude to review or determine agency policy. “The Court otherwise lacks the authority to re-write agency policy in order to provide a remedy here. The Court is not in a position to balance the competing interests involved in an interagency redress process or to reallocate agency resources as a general matter,” declared the DOJ.

While protesting that no relief should be provided to any of the plaintiffs in this matter, the DOJ went on to inform the court that “Finally, the Court lacks authority to order…. additional relief beyond the Plaintiffs.”

In other words, there should be no broader decisions made as to the rights or remedies of others who are watchlisted.

THE TERRORIST WATCHLIST KILLS

A recent article in The Nation by  reporter Dave Lindorff discusses his discovery, while flying with his family in Europe, that he had been placed on the Selectee Watchlist, a sublist of the Terrorist Watchlist which mandates additional and somewhat intense scrutiny in airports. Lindorff did not appear to be aware that such scrutiny has been life threatening for others.

A recent article concerning an Indian Christian pastor who attempted to enter the US on a mission to meet with other pastors concerning the proliferation and abuse of directed energy weapons revealed that his watchlisting resulted in his near death experience and hospitalization.  Still watchlisted, this pastor recently was hit with a grenade tossed into the room where he slept, an attack which reportedly killed two others and maimed him.

Yet another US-born journalist was placed on a drone-kill list, which is part of a terrorist database. Abdul Kareem’s lawsuit against the US for attempting to kill him without due process was recently dismissed by federal judge Rosemary Collyer, after the Trump administration invoked the “state secrets” privilege, citing “national security.”

A journalist who found herself on the selectee list reported that she was taken into a separate room in Houston International Airport and that, as part of the purported enhanced checking procedure, was wanded with a metal wand, which had been laced with a chemical weapon. The wand was rubbed up and down her body, even though she had cleared the metal-detector with no incident. She reports vomiting and blistering immediately following the wanding.

Other effects of being watchlisted have included denial of Western Union services and medical care.

And there are mounting concerns that ordinary American citizens are being placed on a watchlist in order to test electronic and chemical weapons on them, without their knowledge or consent.

NO LEGAL REMEDY IF WATCHLISTED

A key issue raised by CAIR in this lawsuit is the lack of remedy, should one be watchlisted.  According to the brief filed by CAIR in response to Judge Trenga’s request for input after he declared the watchlist unconstitutional, it was noted that the Court had stated that “The vagueness of the standard for inclusion in the TSDB, coupled with the lack of any meaningful restraint on what constitutes grounds for placement  on the Watchlist, constitutes, in essence, the ‘absence of any ascertainable standard for inclusion and exclusion,’ which ‘is precisely what offends the Due Process Clause.”

In this brief, CAIR suggested the following remedies: that the government must disclose the applicable standard for being placed on the watchlist, that any subsequent inclusion standard must include evidence of criminal activity, that there must be notice and opportunity to be heard, that there must be adequate notice given that an individual has been watchlisted and that there must be an opportunity for legal challenge in front of a neutral arbiter.

In the shadowy and secret world of the watchlist, none of these caveats now apply.

As noted by CAIR in this brief, “Everybody—including Plaintiffs—on the watchlist is there based on constitutionally inadequate process.”

The US government has denied that any of these demands should be met.

TRENGA BACKPEDALS

In his order of December 27, which is Trenga’s response to the requested briefs suggesting remedies from both sides, Judge Trenga simply asked for the government to supply its own remedies by early February, for Trenga’s review. This could be seen as going to the fox to determine how better to guard the henhouse.

The lead counsel for CAIR, Gadeir Abbas, was quoted as saying, “I don’t think there’s any doubt the government is going to take a cynical approach to any type of watchlist revision….We expect the government will be focused on maintaining its illegal program.”

In a conversation with this reporter just prior to the December 27 decision by Judge Trenga, Abbas said that he expected the government to appeal the decision. But with Trenga now so accommodating to the government’s position, this may prove to be unnecessary.

At the time of going to press, the DOJ has declined to respond to press inquiries from this reporter.


Janet Phelan is an investigative journalist and author of the groundbreaking exposé, EXILE. Her articles previously appeared in such mainstream venues as the Los Angeles Times, Orange Coast Magazine, Long Beach Press Telegram, etc. In 2004, Janet “jumped ship” and now exclusively writes for independent media. She is also the author of two collections of poetry—The Hitler Poems and Held Captive. She resides abroad. You are invited to support her work on Buy Me A Coffee here: https://www.buymeacoffee.com/JanetPhelan

Image credit: The Free Thought Project

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