Well this is an interesting development. A federal judge appointed by George W. Bush has ruled that the government’s terror watch list is an unconstitutional denial of due process to the thousands of American citizens who have found themselves on the list. This is separate from the no-fly list, which was also declared unconstitutional in a different case.
A federal judge ruled Wednesday that an FBI watch list of more than 1 million “known or suspected terrorists” violates the constitutional rights of U.S. citizens in the database.
The decision from U.S. District Judge Anthony J. Trenga of the Eastern District of Virginia in favor of 23 Muslim Americans who sued over their inclusion in the Terrorist Screening Database found that the watch list infringes on their constitutional right to due process. Trenga noted that the list restricts their ability to fly and engage in everyday activities and backed the plaintiffs’ concerns that they were flagged secretly and without a clear methodology.
“There is no evidence, or contention, that any of these plaintiffs satisfy the definition of a ‘known terrorist,’ ” wrote Trenga, adding that even harmless conduct could result in someone being labeled as a “suspected terrorist” on the watch list.
“An individual’s placement into the [watch list] does not require any evidence that the person engaged in criminal activity, committed a crime, or will commit a crime in the future,” the judge wrote, “and individuals who have been acquitted of a terrorism-related crime may still be listed.”
And therein lies the problem. Lots of people, all of them Muslim, have found themselves on the list with no idea how they got there and no way to get the government to tell them what put them on the list. Often it’s just been the fact that they shared a name, or a similar one, to someone who should be on the list. The judge has ordered the two sides to come up with proposals for how the process of placing people on the list will be more transparent and open to appeal. There are nearly 1.2 million people on this list, including more than 4000 American citizens. Some of them, no doubt, deserve to be on such a list, but if so the government should be able to show the evidence for that to a judge if someone challenges their inclusion on it.
In the earlier case where the no-fly list was declared unconstitutional, the judge made a similar demand of the two sides and the Department of Homeland Security was forced to make changes in the way that list was compiled so it would conform to the demands of the due process guarantees in the Constitution. We’ll see what the two sides come up with in this case.