The email for this article was deactivated after Judge Trenga ruled in favor of CAIR's complaint.

District Judge Anthony J Trenga to make public safety and national security a priority in Elhady et al v. Piehota et al Case No. 1:16-cv-00375-AJT-JFA.

On September 4, 2019, U.S. District Judge Anthony Trenga issued an initial order declaring that the Terror Screening Database (aka Terror Watch List) was unconstitutional because it it violates the Due Process Clause.  Judge Trenga gave Defendant United States of America and Plaintiff Council on American Islamic Relations (CAIR) until October 25, 2019 to file briefs and until  November 22, 2019 to file responses to those briefs regarding his initial order and their proposals for relief orders.  The briefs and responses have been filed.   It appears that Judge Trenga plans to issue a final order after considering each parties brief and responses to the briefs.

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 millions of Americans and the citizens of several other countries from terrorism.

CAIR 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, the United States argues that many of the 23 plaintiffs have not proven how being on the list has deprived them of any   liberty and most importantly that plaintiff  CAIR is dangerously pushing Judge Trenga to go beyond the 23 plaintiffs, the only people who actually have legal standing in this case.  There are 4,600 Americans and 1.09 million NON-Americans included on the database.  

The United States "Defendants’ Memorandum of Law Regarding Remedies" states in part:

Introduction:  

     “Defendants respectfully maintain that Plaintiffs have not demonstrated entitlement to any relief in this matter because they have not shown that they are being harmed by the Terrorist Screening Database (“TSDB”), or that they are being deprived of a liberty interest protected by the Due Process Clause.  Nonetheless, because the Court has determined that there has been a procedural due process violation and solicited the parties’ views on appropriate remedies, Defendants submit that the Court should simply enter a declaratory judgment regarding the violation found, and that any injunction entered should, at most, simply order the Defendants to develop additional procedures to be provided to appropriate Plaintiffs, commensurate with their particular circumstances.  The Court also should enter a final, appealable judgment at this stage so that the Defendants may consider appellate options. 

     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.  Moreover,  the Court should not order application here of the revised redress process that was specifically designed and implemented for the consideration of redress inquiries by U.S. persons who are on the No Fly List and have been denied boarding.  Any redress process that would be applied to individuals like Plaintiffs – who only claim to have been required to undergo enhanced security procedures on at least one or more occasions – involves different policy decisions about resource allocation, the relative harms involved and the appropriate decision-makers.  Application of redress process for persons on the No Fly List to those who alleged they were required to undergo enhanced screening due to alleged inclusion in the TSDB would be both unworkable and unwise.  Finally, the Court lacks authority to order individualized relief for those Plaintiffs who have not demonstrated an ongoing injury, or to order additional relief beyond the Plaintiffs.”

United States urges judge against ruling too far.  “The Seventh Circuit rejected the attempt to certify a class, and warned against tipping the scales too far to avoid incorrect watchlist placement: … Plaintiffs’ demand to tip the scales by either mandating particular new procedures or disclosures during the redress process (or to abolish the TSDB altogether) implicates the need to balance competing policy interests, including future threats.  These determinations are not within the expertise or the authority of the judiciary, and any revisions to the redress process for Plaintiffs should be left to the responsible agency.”

Florida Family Association has prepared an email for you to send to urge District Judge Anthony J Trenga to make public safety and national security a priority in Elhady et al v. Piehota et al Case No. 1:16-cv-00375-AJT-JFA.

The email for this article was deactivated after Judge Trenga ruled in favor of CAIR's complaint.

Contact information:

Honorable Anthony J. Trenga
401 Courthouse Square
Courtroom 701
Alexandria, VA 22314
anthony_trenga@vaed.uscourts.gov