The Michigan chapter of the Council on American-Islamic Relations (CAIR) filed a lawsuit against the US government yesterday (pdf) on behalf of several Muslim-Americans challenging the legality of government policy regarding the Terrorist Screening Database (TSDB), also known as the “Terrorist Watchlist” of “known or suspected terrorists,” arguing that they have been wrongly ensnared in a federal system that is free of accountability, offering no opportunity to those listed to defend themselves or remove themselves from the list.
CAIR press release:
CAIR-MI’s lawsuit states in part:
“[U]nfortunately, the federal government has designed its federal watch list to be accountability free. Persons placed on the federal watch list have no means of removing themselves or challenging the basis for their inclusion. Indeed, people on the federal watch lists only learn of their placement when they feel the web of consequences burdening their lives and aspirations, and they never learn why.”
In a recent investigative report released last week based on leaked federal law enforcement documents, Dearborn, Mich., was ranked as second in the top five U.S. cities represented on federal watch lists.
The report stated that “at 96,000 residents, Dearborn is much smaller than the other cities in the top five, suggesting that its significant Muslim population – 40 percent of its population is of Arab descent, according to the U.S. Census Bureau – has been disproportionately targeted for watch listing.”
Describing its suit as “an expression of anger grounded in law,” CAIR seeks a judgment that declares the government’s policies violate their 5th amendment rights, requiring the government to provide a legal mechanism for those placed on watch lists to challenge their designation. They describe the government policy as “an injustice of historic proportions“:
Our federal government is imposing an injustice of historic proportions upon the Americans who have filed this action, as well as thousands of others. Through extra‐judicial and secret means, the federal government is ensnaring individuals into an invisible web of consequences that are imposed indefinitely and without recourse as a result of the shockingly large federal watch lists that now include hundreds of thousands of individuals.
Investigative journalists Jeremy Scahill and Ryan Devereaux filed two reports at The Intercept within the last month that were critical to the filing of this lawsuit. Barack Obama’s Sercret Terrorist-Tracking System by the Numbers, exposed a classified 166-page government document, (pdf) March 2013 Watchlisting Guidance. The document reveals that the government describes more than 40% of the people caught up in TSDB as having “no recognized terrorist group affiliation” and spells out secret guidelines for placing individuals on its watch list.
The second article Blacklisted: The Secret Government Rulebook for Labeling You a Terrorist, imparts some startling information about just how easily one can be labeled a terrorist by the US government, especially if you live in Dearborn, Michigan:
The new guidelines allow individuals to be designated as representatives of terror organizations without any evidence they are actually connected to such organizations, and it gives a single White House official the unilateral authority to place entire “categories” of people the government is tracking onto the no fly and selectee lists. It broadens the authority of government officials to “nominate” people to the watchlists based on what is vaguely described as “fragmentary information.” It also allows for dead people to be watchlisted.
“Concrete facts are not necessary”
The five chapters and 11 appendices of the “Watchlisting Guidance” are filled with acronyms, legal citations, and numbered paragraphs; it reads like an arcane textbook with a vocabulary all its own. Different types of data on suspected terrorists are referred to as “derogatory information,” “substantive derogatory information,” “extreme derogatory information” and “particularized derogatory information.” The names of suspected terrorists are passed along a bureaucratic ecosystem of “originators,” “nominators,” “aggregators,” “screeners,” and “encountering agencies.” And “upgrade,” usually a happy word for travellers, is repurposed to mean that an individual has been placed on a more restrictive list.
The heart of the document revolves around the rules for placing individuals on a watchlist. “All executive departments and agencies,” the document says, are responsible for collecting and sharing information on terrorist suspects with the National Counterterrorism Center. It sets a low standard—”reasonable suspicion“—for placing names on the watchlists, and offers a multitude of vague, confusing, or contradictory instructions for gauging it. …….The rulebook makes no effort to define an essential phrase in the passage—”articulable intelligence or information.” After stressing that hunches are not reasonable suspicion and that “there must be an objective factual basis” for labeling someone a terrorist, it goes on to state that no actual facts are required:
“In determining whether a REASONABLE SUSPICION exists, due weight should be given to the specific reasonable inferences that a NOMINATOR is entitled to draw from the facts in light of his/her experience and not on unfounded suspicions or hunches. Although irrefutable evidence or concrete facts are not necessary, to be reasonable, suspicion should be as clear and as fully developed as circumstances permit.”
The Intercept: Five Muslim-Americans Sue Feds Over Watchlisting
Gadeir Abbas, a CAIR staff attorney, described the lawsuit as “a manifestation of the anger of the American Muslim community.”
“It is an example of five American Muslims standing up, not just for themselves and their own community, but on behalf of all Americans interested in preserving their basic liberties” Abbas told The Intercept. “Federal watchlisting, which really is best understood as a system of meting out punishment based on secret laws, is an injustice of historic proportions.”
The American Civil Liberties Union (ACLU)also filed a lawsuit against the government’s policies regarding the TSDB last month. The LA Times reports, according to the ACLU, “the government has failed to ensure that innocent people are not listed in the database or, if they do end up there, that they are promptly removed. “:
In 2013, according to a government filing in another lawsuit, 468,749 people were nominated for the database and only 1% were rejected — even though the Government Accountability Office found in 2009 that 35% of the nominations were outdated and that tens of thousands of names had been entered into the database without an adequate factual basis. What’s more, the nominating guidelines allow people to be listed simply because they are related to or know someone who is suspected of terrorism, even when there is “insufficient derogatory information” for the person to otherwise be listed on his own.
If being on the list had no practical effect, that would be one thing. But according to the ACLU, the Department of Homeland Security, through its U.S. Citizenship and Immigration Services division, checks the names of people seeking to live legally in the United States against the list. If there is a match, the applicant is deemed a “national security concern” and his or her application for citizenship or lawful permanent resident status can be denied or left in limbo. If true, this is worrisome. We expect the government to refuse U.S. citizenship or residency to terrorists and even suspected terrorists, but we also expect its information to be carefully screened and credible.
Here’s another concern: Sometimes, according to the ACLU, Citizenship and Immigration Services asks questions on the FBI’s behalf during naturalization interviews with applicants, a troubling blurring of lines between immigration work and law enforcement. The agency also denies naturalization to people who have donated to groups the government believes are linked to terrorism, even if there is no evidence that the applicants knew of the terror connections.
If the ACLU is right, the rules needs to be rethought.