Appeals court upholds constitutionality of terror watchlist

FALLS CHURCH, Va. — A federal appeals court on Tuesday overturned a challenge to the constitutionality of the government’s terrorist watchlist, ruling that the government deserves wide latitude in establishing programs designed to protect national security.

A group of two dozen Muslim plaintiffs sued in 2016, saying their placement on the list had caused all kinds of difficulties in traveling and in other aspects of life. And they said the government’s administration of the list gave them no meaningful way to clear their name when they were wrongly placed on the list.

A federal judge in Alexandria, Virginia, ruled in favor of the plaintiffs in 2019, but the government appealed.

On Tuesday a three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond ruled unanimously in favor of the government. The panel reversed the district court’s decision, sent the case back to the judge and ordered him to rule in favor of the government.

“(T)his is no program of marginal consequence,” wrote Judge J. Harvie Wilkinson. “It lies at the very heart of our country’s effort to identify those who would inflict upon the public irretrievable loss.”

More than 1 million names are on the watchlist, also known as the Terrorist Screening Database, and are considered by the government to be “known or suspected terrorists.” Of those, only a handful — about 4,600 — are U.S. citizens.

Various government agencies use and have access to the list. The much smaller No Fly List is compiled from the watchlist. A broader subset of the watchlist, known as the Selectee List, includes people who are allowed to board flights but are subjected to additional scrutiny. Government officials said the Selectee List can be used to determine which flights will include air marshals, for example.

The plaintiffs alleged a wide variety of harms because of their apparent inclusion on the list. Some said they were subjected to humiliating questions and disparate treatment at airport security. Some allegations were more severe— one plaintiff said he was detained at a border crossing by agents with guns drawn in front of his family, then left handcuffed and freezing in a cold cell for hours until he passed out.

The plaintiffs said they were wrongly placed on the list simply because they are Muslim.

While the appeals court ruled in favor of the government, Wilkinson said the plaintiffs are not totally without recourse if their rights are violated. He said, for instance, that individuals can file lawsuits claiming they were subjected to unreasonable search and seizures under the 4th Amendment.

But he said a broad attack on the program as a whole could do more harm than good.

“Courts lack the expertise and competence to second-guess decisions made about national security needs,” he wrote.

Gadeir Abbas, a lawyer with the Council on American-Islamic Relations, argued the case on behalf of the plaintiffs. He said he will ask the full 4th Circuit to review the case.

“This panel’s decision ignores how the federal government’s secret watchlist has terrorized the Muslim community for almost two decades,” he said. “We are hopeful that the entire Fourth Circuit will review this decision.”

All three judges who heard the case are GOP appointees — Wilkinson was appointed by former President Ronald Reagan and the other two were appointed by former President Donald Trump.

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