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Council on American Islamic Relations (CAIR) to appeal panel ruling that struck down its challenge to the United States Terror Watchlist to the full Fourth US Circuit Court of Appeals.


The Council on American Islamic Relations (CAIR) reports that it plans to appeal a three judge panel decision before the full 4th U.S. Circuit Court of Appeals after the panel unanimously ruled against CAIR's legal challenge to the Terror Watchlist.  CAIR has until April 14th to file its appeal. 

Florida Family Association has prepared an email for you to send to urge all of the judges on the 4th U.S. Circuit Court of Appeals to make public safety and national security the priority in Anas Elhady v. Charles Kable.  The judges in the three judge panel who ruled against CAIR are not included in this email prepared to be sent to full court.  See the full history of this litigation below.

Click here to send your email to the full 4th U.S. Circuit Court of Appeals except the three judge panel.    (For Gmail, Yahoo and other email clients that require comma separation of addresses.)  YAHOO works best in Yahoo Mobile App, not so well with internet browser. 

Click here to send your email to the full 4th U.S. Circuit Court of Appeals except the three judge panel  For Outlook and other email clients that require semicolon separation of addresses.)

These emails will open in your email browser because the 4th U.S. Circuit Court of Appeals is blocking normal form emails sent through the Florida Family Association email server.  If the above link does not open in your email browser or if the email is returned to you please prepare an email using the suggested subject line, content and email addresses provided below. Please feel free to change the wording.

Suggested subject line:

Please preserve as much of the Terror Screening Database as possible for the safety of the American people.

Suggested content:


United States Court of Appeals for the Fourth Circuit

Honorable Circuit Court Judges,

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.  

Email String separated by commas

RLG@ca4.uscourts.gov,
PVN@ca4.uscourts.gov,
DGM@ca4.uscourts.gov,
WBT@ca4.uscourts.gov,
RBK@ca4.uscourts.gov,
GSA@ca4.uscourts.gov,
BMK@ca4.uscourts.gov,
JAW@ca4.uscourts.gov,
albert_diaz@ca4.uscourts.gov,
henry_floyd@ca4.uscourts.gov,
SDT@ca4.uscourts.gov,
PAH@ca4.uscourts.gov,
JNR@ca4.uscourts.gov,
dennis_shedd@ca4.uscourts.gov,
AJR@ca4.uscourts.gov

Email String separated by semicolons

RLG@ca4.uscourts.gov;
PVN@ca4.uscourts.gov;
DGM@ca4.uscourts.gov;
WBT@ca4.uscourts.gov;
RBK@ca4.uscourts.gov;
GSA@ca4.uscourts.gov;
BMK@ca4.uscourts.gov;
JAW@ca4.uscourts.gov;
albert_diaz@ca4.uscourts.gov;
henry_floyd@ca4.uscourts.gov;
SDT@ca4.uscourts.gov;
PAH@ca4.uscourts.gov;
JNR@ca4.uscourts.gov;
dennis_shedd@ca4.uscourts.gov;
AJR@ca4.uscourts.gov

Contact information:

Chief Judge Roger L. Gregory
804-916-2700
RLG@ca4.uscourts.gov

Judge J. Harvie Wilkinson III
434-296-7063
JHW@ca4.uscourts.gov

Judge Paul V. Niemeyer
410-962-4210
PVN@ca4.uscourts.gov

Judge Diana Gribbon Motz
410-962-3606
DGM@ca4.uscourts.gov

Judge William B. Traxler, Jr.
804-916-2700
WBT@ca4.uscourts.gov

Judge Robert B. King
304-347-3533
RBK@ca4.uscourts.gov

Judge G. Steven Agee
804-916-2700
GSA@ca4.uscourts.gov

Judge Barbara Milano Keenan
804-916-2700
BMK@ca4.uscourts.gov

Judge James A. Wynn, Jr.
804-916-2700
JAW@ca4.uscourts.gov

Judge Albert Diaz
704-333-8025
albert_diaz@ca4.uscourts.gov

Judge Henry F. Floyd
864-591-5300
henry_floyd@ca4.uscourts.gov

Judge Stephanie D. Thacker
304-347-3516
SDT@ca4.uscourts.gov

Judge Pamela A. Harris
804-916-2700
PAH@ca4.uscourts.gov

Judge Julius N. Richardson
804-916-2700
JNR@ca4.uscourts.gov

Judge A. Marvin Quattlebaum, Jr.
864-241-2190
marvin_quattlebaum@ca4.uscourts.gov

Senior Judge Dennis W. Shedd
803-732-8250
dennis_shedd@ca4.uscourts.gov

Judge Allison Jones Rushing
804-916-2700
AJR@ca4.uscourts.gov

History

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." 

On March 30, 2021, the United States Court of Appeals for the Fourth Circuit issued its Order and Opinion which reversed the district court judge's ruling and granted the United States motion to dismiss.

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.


Author: ffa   20210413   Category: Terrorism  FFA: on
Tags: Terror watchlist
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