The Council on American Islamic Relations (CAIR) sued the Department of Homeland Security (DHS) on April 5, 2016 on behalf of 23 Muslims. The lawsuit challenged the validity of the Terror Screening Database (TSDB), the official name for the terror watch list that is used by law enforcement and the private sector to protect hundreds of millions of Americans and the citizens of several other countries from terrorism.
Florida Family Association sent out several email alerts regarding this lawsuit. Approximately 11,000 people sent emails to encourage U.S. District Judge Anthony Trenga to make national security the priority in this case. The first sentence of the email prepared for people to send to the judge stated “You have a major task of balancing the priceless benefits of the Terror Screening Database that protects hundreds of millions of Americans with the rights of individuals who may have dangerous relationships or an unsafe history.” It appears from this initial ruling that Judge Trenga is balancing individual rights with public safety.
CAIR has won the case for its 23 Muslim plaintiffs but NOT yet for the abolition of the entire Terror Screening Database (TSDB). CAIR convinced Judge Trenga that there is insufficient evidence to keep its 23 plaintiffs on the TSDB. However, it appears from Judge Trenga’s ruling that TSDB may remain a vital public safety tool if the FBI implements changes to ensure procedural due process.
U.S. District Judge Anthony Trenga granted summary judgment to 23 Muslims who challenged the watch list. Judge Trenga wrote in part: "There is no evidence, or contention, that any of these plaintiffs satisfy the definition of a 'known terrorist’. An individual's placement into the TSDB does not require any evidence that the person engaged in criminal activity, committed a crime, or will commit a crime in the future; and individuals who have been acquitted of a terrorism-related crime may still be listed in the TSDB. … The Court concludes that the TSDB fails to provide constitutionally sufficient procedural due process…”
Judge Trenga ordered relief for the 23 Muslim plaintiffs who were on the list without “evidence or contention” in violation of the Due Process Clause. The court’s relief will also likely apply to any of the 4,600 American citizens/lawful permanent residents who are on the list without “evidence or contention” in violation of the Due Process Clause. The remaining 1.09 million people on the terror watch list are not American citizens.
The following statements appear to indicate the court may allow the terror watch list to proceed as long as changes are made to ensure Due Process.
Judge Trenga wrote on page 31 of his order:
C. Plaintiffs’ Remedy
“Before ruling further as to the appropriate relief in this case, the Court directs the parties to file supplemental briefing as to what they contend is the appropriate remedy, including whether the post-Latif changes to DHS TRIP should apply, including those procedures the Court has outlined for assessing the adequacy of the revised DHS TRIP process in a particular case; and if not, why not.”
ORDERED that Plaintiffs’ Motion for Summary Judgment be, and the same hereby is GRANTED to the extent that the Court concludes that the DHS TRIP process currently applicable to any inquiries concerning the TSDB does not satisfy the Due Process Clause.”
Clearly, based upon the above two quotes the court is limiting its order to apply to situations that do not satisfy the Due Process Clause. It appears this court’s ruling may be preserving the Terror Screening Database (TSDB) while protecting individual rights. This is good news which is being twisted and overlooked by most of the press. Consider these headlines:
Washington Post “FBI's terror watch list is unconstitutional, federal judge rules says”
New York Times “Judge Rules Terrorism Watchlist Violates Constitutional Rights”
Newsweek “U.S. Federal Judge Rules Terrorist Watchlist Is Unconstitutional”
But Law Fare provides this accurate headline: "Procedures for Terrorist ‘Watchlist’ Unconstitutional, Court Rules." Law Fare reports in part: "The U.S. District Court for the Eastern District of Virginia ruled that the federal government's Terrorist Screening Database program, commonly referred to as the terrorist "watchlist," does not provide "constitutionally adequate" process for Americans included in the database. The Court instructed both sides to submit briefs about what they each view as the appropriate relief."
Don’t let the liberal news headlines deceive you. The court has not yet struck down the entire terror watch list but appears to have ordered procedures to keep American names off of it that have no evidence or basis for being on the list.
The court gave both parties until October 25, 2019 to file briefs about what they each view as the appropriate relief and until November 22, 2019 to file responses to the other party's brief. The court will issue its final ruling after the briefs have been filed. Hopefully, the court will not strike down the entire Terror Watch list. Florida Family Association will monitor the briefs filed by both parties and may issue future email alerts on this case.