The United States Court of Appeals for the Fourth Circuit has upheld the Terror Watchlist as constitutional. The appellate court reversed the lower court ruling by US District Judge Anthony Trenga who ordered government to modify the Terror Watchlist procedures. The appellate court remanded the case to Judge Trenga with instructions to enter judgment in favor of the government.
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 watchlist that is used by law enforcement and the private sector to protect millions of Americans and the citizens of several other countries from terrorism. Florida Family Association sent out several email alerts over a period of 2 years that asked people to send emails to urge Judge Trenga to make public safety the priority and not abolish the entire Terror Screening Database. Hopefully, the thousands of emails to Judge Trenga encouraged him along the way.
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. Read Florida Family Association’s full report. Therefore, the DHS Terror Watchlist was still active and being used by thousands of government and business officials throughout the world.
While the judge did not rule the entire list unconstitutional he did order DHS to refine its procedures to comply with his standard of “due process” for adding and removing names to the TSDB. The judge “ORDERED that Defendants submit to the Court the information and revised procedures identified in its Order dated December 27, 2019 [Doc. No. 3481 within ninety (90) days of the date of this Order, and to the extent the Defendants contend that this information and revised procedures should be placed, in whole or in part, under seal or submitted ex parte or in camera.” DHS had until March 26, 2020 to comply with his order.
DHS appealed Judge Trenga’s ruling and order to the United States Court of Appeals for the Fourth Circuit.
Florida Family Association sent out several email alerts that encouraged people to send emails to the three justices on the United States Court of Appeals for the Fourth Circuit panel. The prepared emails sent to the three justices stated: “I respectfully urge you not to give terrorists an advantage at the expense of the safety of American lives by affirming specific rules or unprecedented relief that may not work and could help terrorists in Anas Elhady v. Charles Kable. Requiring Government procedures for seeking redress for an individual’s alleged placement on the Terror Screening Database that go beyond what is necessary to satisfy Due Process could result in incorrect watchlist placement and jeopardize public safety."
Fourth Circuit's reversal
On March 30, 2021, the United States Court of Appeals for the Fourth Circuit issued its Order and Opinion.
Judge Wilkinson wrote the opinion, in which Judge Richardson and Judge Quattlebaum joined.
The following is the introduction to the Opinion written by Judge Wilkinson:
To protect against acts of terrorism, the government maintains the Terrorist Screening Database (TSDB). One of the chief uses of the TSDB is to screen travelers in airports and at the border. The plaintiffs, twenty-three individuals who allege they are in the TSDB, object to the delays and inconveniences they have experienced in airports and at the border. They allege the TSDB program violates the Fifth Amendment’s Due Process Clause by failing to include more procedural safeguards.
The term “national security” is too often bandied loosely and carelessly about, but this is no program of marginal consequence. It lies at the very heart of our country’s effort to identify those who would inflict upon the public irretrievable loss and irreparable mass harms. By bringing this across-the-board attack on a system vital to public safety—rather than more focused individual challenges to particular law enforcement actions—plaintiffs face a demanding legal standard. Procedural due process claims require showing that the government violated constitutionally protected liberty interests. Plaintiffs cannot meet that burden. The government has had authority to regulate travel and control the border since the beginning of the nation. Indeed, this authority is a core attribute of sovereignty. The delays and burdens experienced by plaintiffs at the border and in airports, although regrettable, do not mandate a complete overhaul of the TSDB.
Nor are plaintiffs’ alleged reputational injuries more persuasive. The government has not publicly disclosed their TSDB status, the inconveniences protested reflect no singular disapprobation, and plaintiffs have not demonstrated the loss of any legal rights due to their alleged TSDB inclusion.
The following is the conclusion of the opinion printed here in part:
Several factors make us doubt the merits of plaintiffs’ arguments under this framework.
First, the government’s interest is extraordinarily significant in this case.“[T]he Government’s interest in combating terrorism is an urgent objective of the highest order.”Holder v. Humanitarian Law Project, 561 U.S. 1, 28 (2010). The government claims that the TSDB is at the core of its counterterrorism apparatus and that burdening it with more procedures would markedly increase the risk of terrorist incidents.
Second, the weight of the private interests at stake is comparatively weak. In Hamdi v. Rumsfeld, 542 U.S. 507 (2004), the Supreme Court applied the Mathews v. Eldridge balancing test and held that procedural due process required the government to give limited hearings to indefinitely detained U.S. citizens who were accused of being enemy combatants in the war on terror. Id. at 538–39. In part, the Court expressed concern about the risk of erroneous determinations that individuals were enemy combatants, describing that risk as “unacceptably high.”
Third, we would not casually second-guess Congress’s specific judgment as to how much procedure was needed in this context. See Walters v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305, 319–20 (1985) (underscoring the “deference [courts] customarily must pay to the duly enacted and carefully considered decision of a coequal and representative branch of our Government” because “legislatures are to be allowed USCA4 Appeal: 20-1311 considerable leeway to formulate such processes without being forced to conform to a rigid constitutional code of procedural necessities”); see id.at 326.
History and precedent reveal that the government possesses latitude in regulating travel, guarding the nation’s borders, and protecting the aspirations of the populace for tranquility and safety. For “[u]nless a society has the capability and will to defend itself from the aggressions of others, constitutional protections of any sort have little meaning.” Wayte v. United States, 470 U.S. 598, 612 (1985). We have such imperfect comprehension of the consequences of our interventions as to raise the prospect here of doing far more harm than good. Given the nation’s need for unrelaxed vigilance against catastrophic threats, we can say with confidence only that the TSDB program matters and that it conforms to long-settled propositions of law. But saying that should be enough. Plaintiffs’ procedural due process claims fail for the reasons set forth above. We thus reverse the district court’s denial of the government’s motion for summary judgment and remand this case with instructions to enter judgment in favor of the government.
The Council on American Islamic Relations (CAIR) reports that it plans to appeal the decision before the full court of appeals. CAIR has until April 14th to file its appeal.
Florida Family Association will send out a new alert after CAIR files for the appeal to encourage people to send emails to the full court.