Intellectual Property Law

Court: Government Must Reveal Watch-List Status to Constantly Detained Americans

By Ryan Singel, Kevin Poulsen, Sarah Lai Stirland, Kim Zetter, and David Kravets

Eight Americans of south Asian and Middle Eastern descent who were repeatedly detained at the border for questioning will be able to learn if they are actually on the government's terrorist watch list, a federal court in Illinois ruled last week, marking the first time that citizens have been able to learn whether they have been added to a sprawling and error-prone list used for screening at borders and traffic stops.

The government invoked the powerful state secrets privilege in the case, arguing that letting the plaintiffs know if they are or aren't on the list would harm national security since that could alert them to the fact they have been under government scrutiny.

But since the government admits it has stopped the six men and two women more than 35 times, federal Magistrate Judge Sidney Schenkier of the United States Northern Illinois District Court dismissed that argument. Instead he found that the government "failed to establish that, under all the circumstances of this case, disclosure of that information would create a reasonable danger of jeopardizing national security."

The plaintiffs, most of whom are Muslim, filed suit (.pdf) against the Department of Homeland Security and the FBI in June 2005. They say none of them have any links to terrorism, but are continually stopped and questioned due to faulty watch lists. They charge government agents have unjustly restrained, confined and questioned them, sometimes for more than four hours, because some have been unfairly put on a watch list, while others say they are continually misidentified as someone on the list.

The court's rebuff (.pdf) of the government's use of the state secrets privilege is highly unusual, as courts are rarely willing to challenge the executive branch on mattes of national security. Experts call the state secrets privilege the "nuclear option," and the Bush administration has used it widely to dismiss cases challenging its warrantless wiretapping program and the CIA's use of secret overseas prisons.

The lawsuit is also notable since it breaks new legal ground in regards to the government's terrorist watch list, which lacks any mechanism for citizens to challenge their placement on the list. Government audits have repeatedly criticized the operation of the list, which has inadvertantly snagged high-powered nuns, senators, children and government employees with security clearances.

The Terrorist Screening Center, which runs the list, says it has been pruning the list and removing errant entries, even as the list grows by an estimated 20,000 names a month. While the TSC says the majority of the names on the list are foreigners, most of the people compared against the list are Americans, who are checked against the list when they are stopped for a traffic violation, enter or leave the country or fly domestically.

Additionally, the judge ruled that the state secrets privilege against disclosing sources and methods does apply to FBI investigative files and terrorism information in its TIDES database, but that the government should show those documents to the judge in secret, so the judge can decide what portions of those files can be safely released.

The potential class-action lawsuit accuses the government of violating Americans' Fourth and Fifth Amendment rights by exaggerating the risks of persons it puts on the list and not having robust ways of dealing with name mismatches. That, the plaintiffs allege, led government agents to unconstitutionally detain the men and their families for hours and conduct illegal pat down searches.

In one case, Customs agents stopped Dr. Khalid Bhatti, a gastroenterologist who has been a U.S. citizen since 1979, searched him on the hood of his car, in front of his wife and daughter-in-law. Agents then handcuffed him, led him away for questioning and examined his cellphone and Palm Pilot.

For its part, the government admits nearly all of the secondary screenings occured -- including 11 stops of Oussama Jammal. They also admit that sometimes agents handuffed the plaintiffs, including handcuffing one plaintiff to a chair during questioning.

But the government denies (.pdf) that any of the stops were "unjustified," or that its 800,000 name-long watch list is overbroad or negligently administered.

Justice Department spokesman Charles Miller declined to comment on the ruling. He also declined to indicate if the government planned to appeal the decision, though that is highly likely.

The plaintiffs are asking the court to force the government to change how it handles name mismatches, how Americans are described on the list, and reasonable policies for family members and children that have to wait for a parent to be released from questioning by government agents.

See Also:

• US Terror Watch List Surpasses 900000 Names, ACLU Estimates - UPDATED
• Terrorist Watchlist Database Balloons
• 860000 Name Long Terror Watch List Scrutinizes Americans Most
• 700000 Name Terror Watch List Still Riddled With False Information
• Reporter Visits Terror Watch List Center, Prevented from Seeing Big Board
• DHS Re-Launches Watchlist Help Site After Threat Level Crushed the Old One

Full post as published by Threat Level on April 24, 2008 (boomark / email).