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CAIR wins due process for some named plaintiffs but loses bigger legal challenge to abolish entire terror watchlist.


Great News!  US District Judge Anthony Trenga issued a ruling on December 27, 2019 that VALIDATED the Department of Homeland Security Terror Screening Database (TSDB) and did NOT extend his September 4, 2019 order to give relief to unnamed plaintiffs including more than a million non-Americans on the list.

The Council on American Islamic Relations (CAIR) sued the Department of Homeland Security (DHS) on April 5, 2016 on behalf of 23 Muslims who protested inclusion on the TSDB.  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 13,000 people sent emails to encourage U.S. District Judge Anthony Trenga to make national security the priority in this case.  The wording of the last email prepared for people to send to the judge stated:  “I respectfully urge you to hold fast to protecting the public safety benefits afforded millions of Americans by the Terror Screening Database when making your final ruling in Elhady et al v. Piehota et al Case No. 1:16-cv-00375-AJT-JFA.  An order extending relief beyond the 23 plaintiffs will result in risky people going unnoticed by public safety officials who should be on the watchlist.  Please do not give terrorists the advantage over the safety of American lives by ordering specific rules or unprecedented relief that may not work and could help terrorists.  Tipping the scales too far in your ruling could result in incorrect watchlist placement and jeopardize public safety.  Please do not abandon or diminish public safety in your ruling.  Please preserve as much of the Terror Screening Database as possible for the safety of the American people.”

CAIR won the order of the court to require due process for some of its 23 plaintiffs included on the TSDB but lost its challenge to invalidate the terror watch list altogether and remove everyone from it.  The wording of the first 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.”  And that is exactly what Judge Trenga accomplished in his final order written on December 27, 2019.

Judge Trenga’s December 18, 2019 order cited in part:  “Plaintiffs also seek broad injunctive relief with respect to all persons currently on the TSDB, including actions necessary to eliminate the unconstitutional stigma of those improperly placed on the TSDB.”  CAIR sought to obliterate the entire Terror Screening Database.  However, Judge Trenga’s final order written on December 27, 2019 clearly indicates that CAIR lost that challenge. 

Judge Trenga’s December 27, 2019 order states in part:

“Plaintiffs, or at least some of them, have standing to raise constitutional challenges” regarding the process of being included on the TSDB and the DHS TRIP.  Clearly, the judge’s order stating “Plaintiffs, or at least some of them” not only means that his order does not apply to the one million non-Americans on the TSDB but may not apply to all 23 of the Plaintiffs named in CAIR’s lawsuit.

“ORDERED that Defendants (DHS) promptly review the listing of any named Plaintiff currently on the TSDB according to additional procedures to be added to a revised DHS TRIP process that are reasonably calculated to provide the required procedural due process, together with the creation of an adequate administrative record, with particular consideration given to (1) the threshold showing necessary to determine whether any Plaintiff is entitled to such a review and the notice and explanation given to any Plaintiff determined not to meet that threshold; (2) the notice and opportunity to respond to any derogatory information; (3) the notice to be given Plaintiffs with respect to their TSDB status upon completion of that review; and (4) the opportunity for review and/or appeal of any adverse determination.”  DHS has until February 10, 2020 to “disclose those revised procedures to the Court for its review as to their constitutional adequacy…”

Again, the court order extends only to “named Plaintiffs” and not to the entire terror watch list.  Additionally, the court’s order regarding “additional procedures” means that the TSDB prevails through this challenge but with new procedures.  The court did NOT invalidate the Terror Screening Database as demanded by CAIR. 

Additionally, the court issued Judgement in favor of the Defendants (DHS) and against CAIR Plaintiffs regarding Counts II (substantive due process claim), IV (The Equal Protection Clause Claim), and V (the non-delegation doctrine claim.

THANKFULLY, the court preserved the benefits of the Terror Screening Database for the protection of Americans.  Hopefully, the 13,000 emails to Judge Trenga encouraged him along the way.


Author: ffa   20200121   Category: CAIR, Terror  FFA: on
Tags: Terror Screening Database, TSDB
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