US appeals court upholds constitutionality of FBI terror watch list

By LE Desk

March 31: A three-judge panel of the U.S. Court of Appeals for the 4th Circuit has upheld the constitutionality of an FBI watch list of more than 1 million “known or suspected terrorists,” saying it falls under the government’s power to guard its borders.

“The government has had authority to regulate travel and control the border since the beginning of the nation,” Judge J. Harvie Wilkinson III wrote in an opinion issued Tuesday, The Washington Post reported.

Muslim American civil rights organizations have long challenged the Terrorist Screening Database, created in the wake of the 9/11 terrorist attacks, saying it violates the rights of U.S. citizens. A federal judge in Alexandria, Va., ruled in their favour in 2019, writing that there had to be a meaningful process for someone to challenge placement on a list that leads to screening by border agents, law enforcement and employers that work in national security.

“It is a black box,” he wrote, and one where “erroneous deprivation of . . . travel-related and reputational liberty interests is high.”

But Wilkinson found that most of the plaintiffs’ delays were “not dissimilar from what many travellers routinely face, whether in standard or enhanced screenings, particularly at busy airports.” While a few examples might be more egregious, he said, “a few non-representative encounters, plucked in isolation from millions of encounters occurring each year, are hardly a sound basis for redesigning the entire TSDB system.”

None of the plaintiffs allege that they are on a stricter list of those barred from flying at all, the focus of other litigation.

The panel also ruled that there was no unconstitutional stigma attached to placement on the list, because it is not publicly disseminated and has not been shown to impede employment for any of the plaintiffs.

Gadeir Abbas, an attorney with the Council on American-Islamic Relations, said the group plans to appeal to the full 4th Circuit.

“I think the 4th Circuit opinion ignores the lived reality of the Muslim community for the past two decades as it has been constantly terrorized by this secret watch list,” he said.

The full bench may be more receptive than the three judges who ruled Tuesday: Wilkinson, a nominee of President Ronald Reagan who has taken a narrower view of reputational harm than colleagues, along with two appointees of President Donald Trump.

https://www.washingtonpost.com/local/legal-issues/terror-watch-list-constitutional/2021/03/30/dd2f6fe6-919b-11eb-bb49-5cb2a95f4cec_story.html