A Reply to Margo Schlanger on Latif and Fundamental Rights

Margo Schlanger’s post on Thursday takes as its “vital point” the right of an American citizen to reenter the United States. Margo is responding to Tuesday’s news about Judge Anna Brown’s opinion in Latif v. Holder, which held that the FBI’s Terrorist Screening Center (the TSC, which composes the No Fly List and other watchlists) violated the plaintiffs’ right to due process because it lacks “any meaningful procedures” for them to contest their apparent placement on the No Fly List. Jennifer Daskal has written more on the case, and so have I (at Lawfare).

I agree wholeheartedly with Margo’s vital point. It is one that is at the center of my book, which argues that the Fourteenth Amendment’s Citizenship Clause is an independent source for the fundamental right of a U.S. citizen to enter and leave her own country. Margo makes a similar argument from a substantive due process perspective.

But Margo’s endorsement of this fundamental right strikes me as a faint-hearted one. Is international travel the same two-way street for her that it is for me? And do we see the same value in judicial review?

Earlier in her post, Margo praises Judge Brown as “clearly correct that erroneous inclusion on the No Fly List is a really consequential deprivation.” Put to one side for now which institutional actor should decide what “erroneous” means. What about the citizen whose inclusion on the No Fly List is not erroneous? Margo notes further in her post that she believes that even those who meet the No Fly List criteria “should not be stranded abroad, rendered unable to come home by their government.” So far, so good.

But, once home, should the No Fly List (or some other list, since Latif reminds us that there is a “no-boat list,” too) keep such a citizen from leaving the country again? Who should decide? Margo doesn’t say, but her focus only on those “stranded abroad” opens up the question. Coming and going are two sides of the same coin. The right to return means little without access to the other half of the ticket (as the Latif plaintiffs who refused “one-time waivers” offered by the Government understood all too well). Whatever the reasons motivating it, certainly the deprivation is just as consequential, even if the citizen is not as sympathetic.

In our system, of course, sympathy for the defendant/petitioner/citizen is not the touchstone for evaluating a constitutional injury. If it were, our constitutional rights, especially in the criminal justice system, would look a whole lot different. The judicial opinions that define and protect those rights, after all, were written on the backs of a rogue’s gallery of mostly guilty, but nonetheless rights-possessing, citizens. One of the dangers of a government watchlisting program that seeks to insulate itself from judicial review is that rights can be stripped away without the benefit of a neutral forum where someone other than the initial executive actors are tasked to evaluate the fairness of their rights-stripping action.

I give Margo the benefit of the doubt that the narrowing effect of her description of the issue was not intended to suggest otherwise. But the point is nevertheless worth making for two reasons. The first has to do with the nature of the watchlisting system itself. The second has to do with the relationship between judicial review and fundamental rights.

First, the nature of watchlisting. My book describes in detail the evolution of watchlisting procedures, at least as far as they can be discerned from the public record and interviews. This post is too short to evaluate the intricacies of these multi-agency review and audit systems. The key point to make here is that internal review processes at TSC (or TSA, DHS, or other agencies that use TSC’s watchlisting products) have been infected from the start with precisely the narrow vision that I (and I think Margo) would oppose. That system does not treat the unsympathetic dispassionately – it’s not designed to. Here is the view of the citizen-state relationship as described to me by a very senior former DHS official in an interview for my book:

When you look at the massive numbers of people flying in and out of the country, there’s always going to be some number of cases, hopefully a small number of cases, where you need intervention to be able to sort out who’s really right and what’s fair and just in these cases. And it seems like almost never is it the case that someone’s totally innocent. There’s some nexus of reason why they come to the attention of law enforcement. And by being fully candid with law enforcement, you increase by a substantial magnitude the likelihood that you can get it resolved and get on about your business.

By “intervention,” of course, this official means agency action, not judicial review. And by “get it resolved” and “sort out … what’s fair and just,” this official means resolved and sorted to the agency’s satisfaction. That supposed power to stop citizens and demand answers from them is chilling. It also suggests why more cases, including Latif itself, have raised allegations of coercive use of watchlists to enlist government informants, a startling departure from the ostensible purpose of the No Fly List to prevent specific and credible threats to civil aviation.

It is unfair to place the blame entirely on the agency officials themselves. The problem is systemic and institutional. These systems rely on an impossible dualism, resting final review with those whose primary mission points in the opposite direction from individual rights. Here is the view of that former senior official, who helped stand up these systems from the very beginning:

 I was a Secret Service protectee. So every morning, 6:30, the car’s out there, the armored guy and the guy in the front seat with the gun to jump in front of a bad guy for you. That’s a pretty humbling position to be in, to be a Secret Service protectee. But they show up and the first thing you get is the list of the overnight horribles. And you start tracking them. And you’ve got maybe a 100 names and incidents that you’re trying to make sure that you can remember to say this thing, this thing, how’d this work out, what is this going on? It is a massively sobering responsibility to wake up and to have to deal with the terrorist threats that the country faces every day. And I’m just saying, ask yourself a prudential question. Would you rather those people have the authority to err on the side of caution, or do you want to have the ACLU beat them on the head every time they put somebody’s name on the list? I say err on the side of caution, but combine that with a real and prudent commitment for continuous review of the list, let the things wash out over time and then be dealt with appropriately. And that seems to me where the prudential balance is.

We ask the impossible of those officials if we think they can provide an adequate, dispassionate review. But that is exactly the position the Justice Department has taken in every No Fly List case to reach federal court: Trust the agency experts and their carefully structured redress protocols to balance rights and security, a balance that judicial intervention would upset. As Chief Justice Roberts noted in Wednesday’s opinion in Riley v. California, “Probably a good idea, but the Founders did not fight a revolution to gain the right to government agency protocols.”

So what would the above-quoted former official do? What exactly does “err on the side of caution” mean to someone who sees the threat matrix every day? How does a “prudent” balance appear from that perspective?

So you get the press on your case, you get a congressman on your case, you get another cabinet member on your case, you get the White House on your case, you get DHS on the case or you get FBI on the case. The punch line is, in this system, there are multiple entry points for people to look at an alleged complaint here, or a complaint or alleged injustice, and to have other people come in, get enough information to say, I’m not going to second-guess that. … And sometimes I’d look into it, or have somebody look into it, and I’d call back and say you were right and we’ve taken care of that and here’s the number, we’d call them, it’s done. In other cases, I would just call back and say, I can’t do anything about this. It wasn’t because I didn’t look into it. It’s just that I saw enough stuff there that I said I’m not putting my name on the record to give this person a get-out-of-jail-free card in terms of the watchlist.

These officials are terribly hard-working and well-intentioned. But as Jack Goldsmith has noted, “It is hard to overstate the impact that the incessant waves of threat reports have on the judgment of people inside the executive branch who are responsible for protecting American lives.”

Now consider the second point that Margo’s post raised for me, about the relationship between judicial review and a fundamental right to travel. I’m sure we agree that no rights, even fundamental rights, are impervious to restriction or even forfeiture. There are many reasons that a state might deny a citizen the right to leave the country. Because I think that right is based in the very essence of citizenship in our democratic republic, those restrictions would have to pass strict scrutiny. Margo would get to the same place, at least for a right “to come home”, through substantive due process (an alternative my alternative theory doesn’t foreclose).

Strict scrutiny in this context is hardly insurmountable, and certainly not “fatal in fact.” A few months after Trop v. Dulles – which Margo cites in support of her position – the Supreme Court decided Kent v. Dulles, a case that more directly concerned the right to travel. In language the Court returned to just over two decades later, in Haig v. Agee, the Court made clear that strict scrutiny would not keep the state from preventing the travel of one who is “participating in illegal conduct, trying to escape the toils of the law, promoting passport frauds, or otherwise engaging in conduct which would violate the laws of the United States.”

The difference between today’s system and my lex ferenda is not just adoption of a much higher standard of review – strict scrutiny, rather than the agency’s self-imposed (and sometimes self-disposed) “reasonable suspicion” standard. Just as important is the shift to judicial review with all the shifts in deference, evidence, and neutrality that move implies. That severs the dualism in a traditional and effective way that is at the core of our belief in limited government.

What is more, there is no reason why it should not apply as much to protect the right to domestic travel (a claimed right that the Government has routinely belittled) as to international travel. Why shouldn’t it? As I’ve argued elsewhere, take the word “overseas” out of the following excerpt from Judge Brown’s opinion and see if it makes any difference in our twenty-first century, three-thousand-mile-wide country: “Such an argument ignores the numerous reasons that an individual may have for wanting or needing to travel overseas quickly such as the birth of a child, the death of a loved one, a business opportunity, or a religious obligation.” I don’t know if Margo would agree to that extension, but I suspect that future No Fly List cases will take us there.

There is one final point of potential disagreement to note. Margo writes that “a process-based change to watchlisting procedures can’t meet the need,” by which I understand her to mean the need to protect the right of Americans citizens at least “to come home.” But I think increased judicial review will help meet that need, and not just because of the heightened standard that would apply.

If past is prologue, the move to strict scrutiny applied by a neutral magistrate is not only the right answer because a fundamental right is involved. It is the proper result because the predictable threat of judicial review will drive the TSC and its customer agencies toward more responsible watchlisting that is defensible in a judicial forum. Or the program will simply shut down, as the State Department shuttered its system of passport controls (the No Fly List of the 1950s) when similar challenges resulted in opinions like those we see coming in Latif, Ibrahim, and other cases.

Margo is right to point out that there are many alternatives to an unassailable watchlist that can accomplish the original mission of the No Fly List: protecting civil aviation from specific and credible threats. But it is worth emphasizing that the deprivation of freedom of movement is just as consequential for those whom these officials perceive to be villains as for those deemed to be the right sort of citizen, and it should matter not whether they are coming or going, or crossing an international boundary. Our rights depend on the dispassionate protection of the rights of all, regardless of where our sympathies lie. Insistence on judicial review under a meaningful standard is as much the right procedure to encourage that result as the correct substantive answer to ordinary exercise of such a fundamental right. 

About the Author(s)

Jeffrey Kahn

Professor of Law at Southern Methodist University Dedman School of Law