The following guest post is from Professor Jeffrey Kahn of SMU Law. Jeff is the author of Mrs. Shipley's Ghost: The Right to Travel and Terrorist Watchlists, a terrific book recently published by University of Michigan Press.
The FBI’s Terrorist Screening Center (TSC) is responsible for compiling the U.S. Government’s Terrorist Screening Database, a sensitive but unclassified system of records that aims to identify all known or suspected terrorists. TSC uses that database to create “downstream” watchlists, such as the No Fly List, for use by customer agencies such as the Transportation Security Administration. What process is due to individuals who think their names have been added to these lists?
If that question interests you, then you will want to keep a lookout for a landmark district court judgment expected in early 2014. The case is called Ibrahim v. Department of Homeland Security, et al. (Full Disclosure: I testified in this case as an expert witness for the plaintiff.) It is the first case concerning the constitutionality of this system to go to trial. Evidence was received by Judge William Alsup in open and closed court sessions in San Francisco during the first week of December. The New York Times bookended the trial with a backgrounder just before the trial began and an editorial shortly after the evidentiary record closed.
Judge Alsup could be the first federal judge to rule on the constitutionality of the U.S. Government’s watchlisting system. Or he could issue an equally significant opinion that holds the program to be beyond his judicial review. Either decision would almost certainly be appealed. If past is prologue, the case could be as important as Kent v. Dulles (1958) or Aptheker v. Secretary of State (1964), the Supreme Court cases that demolished the Cold War era travel controls that closely mirror today’s watchlists. Prior to those cases, the State Department routinely denied passports to citizens based on its closed-door evaluation of secret intelligence to determine whether travel was “in the interests of the United States.” Then, as now, thwarted travelers sought meaningful hearings at which to contest the infringement of their right to travel. These and other passport cases eventually ended a system that infringed fundamental rights without due process of law. I advance this historical comparison to today’s watchlisting system in a recent book.
The Plaintiff, a Malaysian citizen studying at Stanford, was arrested at San Francisco Airport in 2005 when she attempted to travel to an academic conference. After several hours, she was released without charge and allowed to travel the next day, but then found her student visa revoked when she attempted to return months later. Her trial presents causes of action under the First Amendment (right to associate and retaliation claims), Fifth Amendment (procedural and substantive due process claims), Equal Protection Clause, and the APA. She seeks declarations and injunctions that would compel the federal defendants to provide her with adequate notice and a meaningful chance to contest her watchlisting status, both on the TSDB and any downstream list.
Plaintiff’s argument is that watchlists are like a bad credit report – once on one, even by mistake, it is virtually impossible to get off, with pernicious consequences. The lists are enormous and the standard for inclusion – the “reasonable suspicion” standard – is one step above a hunch. In any event, the criteria for adding names to these lists are self-imposed by the agencies and riddled with exceptions. This argument seemed buttressed by an unusual occurrence at the start of the trial. One of the plaintiff’s daughters, an American Citizen living in Malaysia, was prevented from testifying in support of some of her mother’s claims by a DHS request not to allow her to board her flight to the U.S. (the plaintiff herself wasn’t granted a visa to testify). Judge Alsup ordered briefing and heard testimony on this development, which shadowed the main testimony in the case.
The Defendants (DHS, TSC, and other federal agencies) argue that these watchlists are well-designed solutions to particularly difficult national security problems. Names nominated for inclusion are rigorously screened by well-trained analysts whose decisions are routinely re-evaluated. Although the TSC is not accessible to the public, they argue that the DHS Traveler Redress Inquiry Program (“TRIP”) provides adequate process while protecting the utility of the watchlists themselves. Errors that may occur are corrected through a system of internal audits. The Defendants also raised a number of arguments that will be familiar from other national security cases and contexts, including that courts should not evaluate many of the national security decisions made by these agencies and that a host of privileges, including the state secrets privilege, make a fair trial impossible.
The case has already generated two important precedents in the Ninth Circuit Court of Appeals. In 2008, Chief Judge Alex Kozinski’s opinion held that the district court retained subject matter jurisdiction notwithstanding a statute providing for exclusive review in the courts of appeals for the TSA security directives used to implement the No Fly List. (A C-SPAN video of oral argument is available; the opinion may be found at 538 F.3d 1250.) In a 2012 opinion by Judge William Fletcher, plaintiff’s substantial connections to the United States were held sufficient to entitle her to proceed with her constitutional challenge even though she is not a U.S. citizen or resident in the United States (the opinion may be found at 669 F.3d 983).