United States District Judge Anthony J. Trenga issued an opinion last Wednesday that should send a shiver down the spine of those invested in the United States’ system of terrorist watchlists. As Shirin Sinnar insightfully commented for Just Security last week, the opinion grants summary judgment to twenty-three United States citizens whose lives were upended by interferences with their freedom of movement that ranged from additional (often harrowing) security screening experiences at land borders and ports-of-entry, to denial of access to commercial airline flights.

The Game Changer

The case is not of interest because of the particular causes of action resolved here: standard Fifth Amendment procedural due process and Administrative Procedure Act claims. As the U.S. approaches the end of its second decade operating the No Fly List and other watchlists, well over a dozen federal judges now have experience mulling these and other issues. Judge Anna Brown reached a similar result four years ago in Latif v. Holder, followed by orders imposing a more substantial redress process for those challenging inclusion on the No Fly List.

The game-changer in Judge Trenga’s case, Elhady v. Kable, is the particular watchlist at issue in the litigation: the Terrorist Screening Database (TSDB). This is a much bigger and more versatile list than the No Fly List. For the first time, the well-shielded TSDB has been held constitutionally unviable. In Judge Trenga’s words: “there is no independent review of a person’s placement on the TSDB by a neutral decisionmaker, and when coupled with the limited disclosures and opportunity to respond by a person who requests that his status be reviewed, there exists a substantial risk of erroneous deprivation, regardless of the internal procedures used to determine whether a nomination to the TSDB is accepted.” Not even Judge Brown’s refinements for the No Fly List satisfied Judge Trenga, who found that “in the context of individuals challenging their placement on the TSDB rather than on the No Fly List, it is a black box – individuals are not told, even after filing, whether or not they were or remain on the TSDB watchlist and are also not told the factual basis for their inclusion.”

This is significant because all the other watchlists used by the United States are created from this central source. Charles H. Kable IV, the lead defendant, is the Director of the Terrorist Screening Center, essentially a component of the FBI, that was conceived in 2003 (in Homeland Security Presidential Directive/HSPD-6) as “an organization to consolidate the Government’s approach to terrorism screening and provide for the appropriate and lawful use of Terrorist Information in screening processes.”

In plain English, the job of the TSC is to create and curate the TSDB, and from that ur-list also to create all the other watchlists used by “customer” agencies, with varying degrees of inter-agency cooperation. Thus, the TSC builds a No Fly List from the TSDB and sends it to the TSA. The State Department gets another list. Customs and Border Protection gets a third list. And the beat goes on, with each specialty watchlist a subset of the TSDB. During discovery, this case revealed that degrees of direct access to the TSDB are also shared with a variety of private entities and contractors beyond practices already known to occur with local and state law enforcement and foreign partners. The TSDB is in that sense the ur-list, because it is the source of all these other watchlists.

Thus, Judge Trenga’s opinion strikes a significant blow to the hub of a hub-and-spoke structure of watchlists and the agencies using them. Declaring the TSDB constitutionally deficient creates the same problem for these derivative lists. The opinion also risks foreclosing a variety of creative uses for watchlists, from ongoing debates about a “No Gun” list to … well, as this 2009 FBI slide suggests, there’s essentially no stopping point.

Judge Trenga is quite familiar with watchlists (he sits in the Eastern District of Virginia where the headquarters of both the TSA and the TSC are located). In an earlier case, Mohamed v. Holder, he unpacked the effect of the TSC’s decision to screen nominations of “known” and “suspected” terrorists to the TSDB with the low “reasonable suspicion” standard. Since this standard was already part of the definition for the latter category, Judge Trenga observed, the result was that “an American citizen can find himself labeled a suspected terrorist because of a ‘reasonable suspicion’ based on a ‘reasonable suspicion.’”

Federal Judges’ Awakening

Why has it taken so long to challenge this motherlode watchlist? By accident or design, this hub-and-spoke structure created traps for the unwary. Lawsuits against the TSA were met with a motion to dismiss on the ground that the TSA did not create the list. But suing the TSC generated a motion to dismiss on the ground that TSC did not use the list.

Worse (from the plaintiffs’ viewpoint), the TSA inherited authorities from the FAA that were used to further limit judicial review. Any suit filed in district court had to contend with an argument based on the FAA’s original 1958 organic statute, which limited jurisdiction to contest certain agency decisions to the courts of appeal. That also had the effect of preventing pretrial discovery outside of TSA’s modest administrative record, since the real decisions were not made at the (spoke) TSA but at the (hub) TSC.

Since people labelled “known or suspected terrorists” find facetime with politicians hard to come by, civil rights litigation was the only game in town. When the September 11, 2001 terrorist attacks were fresher in memory, these cases went nowhere. But as time passed, judges grew more critical of agency arguments. (This is not a new phenomenon, even in the narrow world of travel controls.) The link to the FAA’s Eisenhower-era authorities was first broken in 2008. And the hub-and-spoke, cat-and-mouse game played between the TSC and TSA started to fall with it. So, too, did arguments that plaintiffs lacked standing (because they could not know that they were on secret watchlists) or cognizable injuries (early in the Latif case, in 2010 the Justice Department submitted a paralegal’s affidavit that citizens stranded abroad by the No Fly List could return by boat, without mentioning the existing maritime watchlist). Over time, judges have even grown more vigilant scrutinizing invocations of the state secrets privilege and other means of denying access to watchlisting processes.

Other Avenues of Litigation: What to Watch

As the second decade of America’s experience with watchlists comes to a close, with more judicial constraints on watchlisting, it is no surprise that the Solicitor General has woken to the need to close emerging avenues for litigation. That office now has not one but two petitions for certiorari filed with the Supreme Court on watchlist-related issues. (A 2015 case, Kerry v. Din, contained a watchlisting element, but this was not taken up by the Court.)

The first comes from the Ninth Circuit, DHS v. Ibrahim, the only case so far to have obtained a bench trial (full disclosure: I testified as an expert witness for the plaintiff). Rahinah Ibrahim, a Malaysian graduate student at Stanford, was watchlisted, stripped of her student visa in 2005, and badly mistreated as a result of the incompetence of an FBI Agent who filled out his watchlisting nomination exactly opposite to the instructions on the form.  Her trip to the airport – recovering from surgery in a wheelchair and accompanied by her fourteen-year-old daughter – ended with handcuffs, a jail cell, and a call to paramedics.  After assurances that it was all a terrible mistake, she flew to an academic conference, then home to Malaysia, only to discover there that her student visa had been revoked, effectively banishing her from the United States, where she had married and given birth to her first child, having been lawfully admitted more than twenty years earlier.

After removing her name from the TSDB, the Government added Ibrahim back to the database under a secret exception to the reasonable suspicion standard, and in litigation claimed that the nature of the exception and the reasons for adding her under that process were state secrets (despite earlier assurances to the court that the state secrets privilege would not be invoked to derail the trial, the Government reversed course on the eve of trial to do just that).  And while the Government conceded that she was not, and had not ever been, a threat to national security, Judge William Alsup found that her name had continued to ricochet across watchlists (including the TSDB) “like a bad credit report that will never go away.” Judge Alsup’s remedy was a severe scouring of watchlists along with “certifying that such cleansing and/or correction has been accurately done as to every single government watchlist and database.”

It took Ibrahim nearly eight years and two trips to the court of appeals to learn why she had been so badly treated and to win her case.  But beyond her personal remedy, those two appellate arguments were valuable rulings for groups and individuals fighting watchlists in court.  The first, as noted above, broke the Government’s lock connecting twenty-first century watchlists to old rules designed to shift run-of-the-mill administrative law disputes into courts of appeal.  The second, in 2012, rejected the government’s argument (short-listed for the annals of chutzpah) that when Ibrahim traveled home she became “an alien who voluntarily left the United States and thus left her constitutional rights at the water’s edge.” The New York Times editorial board found the case so noteworthy that it commented not once, or twice, but three times.

Nevertheless, the law firm that took this case pro bono, found its claims for costs and fees under the Equal Access to Justice Act vigorously opposed by the Government. At the core of the fee dispute is an allegation of bad faith in the Government’s conduct — a claim on which EAJA awards can turn — concerning its defense of the watchlisting system.  In the words of Neal Katyal’s brief in opposition: “The fact that Dr. Ibrahim’s suit successfully established important precedents for asserting constitutional rights and spurred changes in Government policy makes this a textbook case for fee-shifting under the EAJA.”  But one is left wondering whether this is precisely why the petition urges review.  After all, “If public-interest lawyers are not compensated for going up against eight years of ‘scorched earth litigation’—a challenge that bore fruit here—they will be deterred from challenging ‘unreasonable governmental action.’”

The second petition, FNU Tanzin v. Tanvir, emerges from the Second Circuit. The plaintiffs alleged that they were placed on the No Fly List in retaliation for refusing to become FBI informants. The Solicitor General’s petition challenges the Second Circuit’s holding that the plaintiffs could seek money damages against federal officials sued in their individual capacities under the Religious Freedom Restoration Act.

Claims that the No Fly List is used as a coercive tool by the FBI are not uncommon in watchlisting litigation. Plaintiffs have alleged that their refusal to become informants in their religious communities and subsequent retaliatory watchlisting left them stranded abroad at the tender mercies of foreign government agents who subjected them to cruel and inhumane treatment or even torture with the complicity of U.S. agents. The extraterritorial features of their cases created yet another litigation challenge. Thus, the availability of a RFRA remedy has the potential to open the door to more challenges (especially given that remedies under Bivens v. Six Unknown Federal Narcotics Agents, a once hopeful source for damages sought by litigants claiming constitutional torts committed by federal officials, have become increasingly harder to obtain in cases beyond the contexts of Bivens itself and a few others).

October will be a busy month. Ibrahim has been distributed for the Supreme Court’s conference on October 1; a response to the Solicitor General’s petition in Tanvir is due October 11. The likelihood that the Court hears these cases is small, but like Judge Trenga’s decision in Elhady, the effect they could have on how terrorist watchlists operate, and are challenged, makes them all watchlisting cases to watch.

What’s Next for the Source of All Watchlists

Meanwhile, in the TSDB case decided last week, Judge Trenga asked the parties to submit briefs on the appropriate remedy to the due process violation. In other words, the government and the plaintiffs are supposed to propose a system for watchlisting that serves bona fide national security purposes but adequately safeguards individuals’ constitutional rights. Their briefs are due October 4.

Judge Trenga made clear in his opinion that he does not believe that pre-deprivation notice or hearings are necessarily required to satisfy the Fifth Amendment. That’s because of the government’s competing interest in not wanting to “alert an individual, and through him or her, others, whom the Government suspects of terrorist activity, and thereby compromise ongoing investigations.” But what procedures will then be required in post hoc reviews – in Judge Trenga’s words what would be “sufficiently robust” – remain to be seen.  After all, the hub-and-spoke system of watchlists means that revelations about a person’s inclusion on the central list can compromise other lists further down.  Post-deprivation review of one listing might simultaneously amount to pre-deprivation review of another listing that has not yet been activated by a person’s attempt to exercise the liberty secretly being reserved for those who pass the reasonable suspicion test (or whatever secret exceptions might be added by the anonymous officials applying them).

While we look to these future dates on these dockets, therefore, the question remains just the same as it ever was: who watches the watchlisters?