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The Situation With the Terrorist Watch List for Americans. Does The List Violate the Constitution?

During my career as the Under Secretary of Homeland Security, I found myself in the dubious position of being denied boarding at Dulles International Airport, despite carrying U.S. Department of Homeland Security credentials, and being escorted by a security detail, as we were boarding a flight to Europe. I suddenly found myself on “a list” which the ticket agent could not identify, nor could he explain anything about the list, other than the federal government had determined that I was a risk of some sort and should not fly.

After reaching our operations center, and actually having the Secretary of Homeland Security’s staff instruct the ticket agent to ignore the list, I was finally allowed to board the flight. To this day, I don’t know the 5-W’s (who-what-where-when-why) I was on “a list.” Perhaps a common name, a misspelling, a clerical error, or, even, a practical joke go horribly awry.

But I was lucky. Not only was I not a terrorist, but I had armed guards with me and a direct line to DHS to resolve the situation quickly. Any other person with such a common name might not have that ability in that situation.

On September 4, 2019, in a federal case titled Elhady v. Kable, out of the United States District Court for the Eastern District of Virginia (Alexandria Division), U.S. Federal District Court Judge Anthony J. Trenga ordered that:

“…the TSDB (Terrorist Screening Database) fails to provide constitutionally sufficient procedural due process, and thereby also violates the Administrative Procedures Act. Plaintiffs are therefore entitled to judgment as a matter of law on Counts I and III of their Amended Complaint, and it is hereby ORDERED that Plaintiff Motion for Summary Judgment…be and the same hereby, is GRANTED to the extent that the Court concludes that the DHS TRIP (Traveler Redress Inquiry Program) process currently applicable to any inquiries concerning the TSCB does not satisfy the Due Process Clause…”

What does that order mean?

For almost twenty years the federal government has maintained the No-Fly List and other watchlists. During that time well over a dozen federal judges have had to consider the constitutionality of these lists. For example, Judge Anna Brown reached a similar result four years ago in Latif v. Holder, followed by orders imposing a more substantial redress process for those challenging inclusion on the No Fly List.

But the TSDB is the motherlode of all other lists. It is this database from which all others emanate. When Judge Trenga decided that “there is no independent review of a person’s placement on the TSDB by a neutral decisionmaker, and when coupled with the limited disclosures and opportunity to respond by a person who requests that his status be reviewed, there exists a substantial risk of erroneous deprivation, regardless of the internal procedures used to determine whether a nomination to the TSDB is accepted.” In other words, the list itself, and the redress procedures for making an inquiry into one’s inclusion on the list, or removal from the list, are wholly and woefully unconstitutional.

In the constant struggle between freedom and security, Judge Trenga has ruled that due process wins, and the government must write and implement rules and regulations that protect an individual’s Fifth Amendment right to due process.

This situation has taken decades to just start correcting the unconstitutionality of the terrorist watch list. But for all those who have been erroneously included, the Courts have taken a significant step toward guaranteeing that right of procedural due process.

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