The FBI’s Terrorist Screening Center was created in 2003 because, as a FAQ on its web site explains, “The 9/11 Commission report found that agencies did not share counterterrorism information in an effective and timely manner.” This is true—to a point. The executive summary of the report recommends the following: “Determine, with leadership from the President, guidelines for gathering and sharing information in the new security systems that are needed, guidelines that integrate safeguards for privacy and other essential liberties.”
The emphasis is mine. Today, there are an estimated 1.2 million people on the center’s Terrorist Screening Database (TSDB), including more than 4,600 Americans and green-card holders. These are people whom officials believe could support or commit terrorist acts. But if you’re in the database, you wouldn’t know it: The government refuses to identify who is on the list or why they were placed there. Many have argued that this is a violation of “essential liberties,” and a court finally agrees.
Earlier this week, a federal judge ruled that the process behind the secret federal watch list violated the Constitution. “The vagueness of the standard for inclusion in the TSDB, coupled with the lack of any meaningful restraint on what constitutes grounds for placement on the Watchlist, constitutes, in essence, the absence of any ascertainable standard for inclusion and exclusion, which is precisely what offends the Due Process Clause,” Judge Anthony Trenga wrote in his 32-page ruling.
It’s fitting that Trenga’s decision came the week prior to the eighteenth anniversary of the September 11, 2001 attacks, which led to the creation of so many constitutionally questionable practices, including the TSDB. While the threat of jihadist terrorism has largely receded in recent years, the consequences of U.S. policymakers’ response to it have not. Americans are still wrestling with—and in some cases suffering from—the policy fallout from 9/11.
The case itself, Elhady v. Kable, comes from a lawsuit brought by 23 American citizens, all of whom are Muslim, who believe their names are on the watch list. The federal cites ongoing investigations and national-security reasons for not disclosing who is or isn’t on the list. But the plaintiffs each have strong reasons to believe they are on it. They told the court that they had been singled out for extraordinary scrutiny by federal officials while traveling. Trenga cited the experiences of Anas Elhady, the case’s namesake, in his opinion.
When attempting to return to the United States by car after a brief trip to Canada in April 2015, [Elhady] was surrounded by CBP officers, handcuffed, and then escorted to a room where he was held for more than ten hours and repeatedly interrogated about his family members and other associates. During this time, Elhady required emergency medical attention and was transported to a hospital, where he was administered Basic Life Support. Elhady was transported to and from the hospital in handcuffs. On at least two prior occasions, Elhady was detained for approximately seven to eight hours when attempting to cross the border into the United States, and was handcuffed, stripped [...] of his belongings, kept in a cell, and prohibited from contacting his attorney.
As a result of the mistreatment, Elhady no longer flies. His experience is an extraordinary example, but not an isolated one. One of the plaintiffs told the court that a DHS agent who detained him said that he would “fix” the plaintiff’s “travel issues” if he became an informant. Another said he was told by officials that he was being questioned repeatedly about his Islamic faith because “we have to protect against terrorism.” The FBI shares access to the database not only with the rest of the federal government, but more than 18,000 law-enforcement agencies nationwide, as well as a wide assortment of universities, hospitals, prisons, and other interested organizations.
There is no due process for those who find themselves on the list. “An individual’s placement into the TSDB does not require any evidence that the person engaged in criminal activity, committed a crime, or will commit a crime in the future; and individuals who have been acquitted of a terrorism-related crime may still be listed in the TSDB,” Trenga wrote. The nebulous and subjective criteria for inclusion also give no meaningful way to predict who does or doesn’t belong.
Accordingly, Trenga found that the watch list unduly violated the plaintiffs’ rights in two ways. First, it imposed a series of unjustified hurdles on their constitutional right to travel and free movement. Second, it harmed their reputations on dubious grounds at best, triggering a host of unwarranted interactions with local police and others who thought they had encountered a “suspected terrorist.” Those harms are compounded by the plaintiffs’ inability to review or challenge their status on the list. Trenga described the list as a “black box [where] individuals are not told, even after filing [a lawsuit], whether or not they were or remain on the TSDB watchlist and are also not told the factual basis for their inclusion.”
The shadow of the post-9/11 era looms over other parts of the American legal system. Last month, a military judge finally set a trial date for five men accused of plotting the September 11 attacks: January 11, 2021. What should be a profound moment of closure and reckoning for Americans will come decades later than it should have. That delay can be largely traced to the George W. Bush administration’s decision to try Khalid Sheikh Mohammed, who was captured in 2003, and four other alleged perpetrators in military commissions at the Guantanamo Bay detention facility instead of the normal federal criminal-justice process on U.S. soil.
The Obama administration hoped to transfer their cases—and those of other Guantanamo Bay detainees—to civilian courts and close down the facility. But Congress blocked that effort, effectively forcing the Justice Department to try them in the Bush-era military commissions instead. The legally turbulent process has now lasted far longer than any civilian trial would ever have. Compare the two-decade delay in bringing the 9/11 conspirators to trial with the four-year process to extradite, convict, and sentence Joaquín “El Chapo” Guzman, or the two-year gap between capture and conviction for one of the men who attacked the U.S. consulate in Benghazi in 2012.
Americans are still dealing with the aftermath of the post-9/11 world in other ways. The Trump administration is currently negotiating with the Taliban to end the 18-year war in Afghanistan, or at least to end the U.S. and NATO military presence there. A growing number of Democrats have called for the dismantling of Immigration and Customs Enforcement, just one of many agencies housed within the colossal and dysfunctional Department of Homeland Security, which was created in 2003. Congress is also set to decide whether to permanently reauthorize the National Security Agency’s moribund call-records program that began shortly after the September 11 attacks.
The plaintiffs in the Elhady case asked the court to order the FBI to remove them from the watch list and create a mechanism for others to challenge their inclusion. But in his ruling, Trenga stopped short of applying their proposed solution to the constitutional problem at hand. He instead invited both sides “to file supplemental briefing as to what they contend is the appropriate remedy” in the next 30 days. Trenga’s hesitation is understandable. We’ve lived in the post-9/11 era so long that it’s hard to imagine what a post-post-9/11 world might look like.