GREAT NEWS! Nearly 2 years after designated terrorist group CAIR declared “complete victory” in its constitutional challenge to the Federal terror watchlist, appellate court overturns it

Appellate Court upholds Terror Watchlist as constitutional, reverses lower court ruling that favored CAIR’s legal challenge.

FloridaFamily The United States Court of Appeals for the Fourth Circuit has upheld the Terror Watchlist as constitutional.  The appellate court reversed the lower court ruling by US District Judge Anthony Trenga who ordered government to modify the Terror Watchlist procedures.  The appellate court remanded the case to Judge Trenga with instructions to enter judgment in favor of the government.

CAIR sued the Department of Homeland Security (DHS) on April 5, 2016 on behalf of 23 Muslims.  The lawsuit challenged the validity of the Terror Screening Database (TSDB), the official name for the terror watchlist  that is used by law enforcement and the private sector to protect millions of Americans and the citizens of several other countries from terrorism.  Florida Family Association sent out several email alerts over a period of 2 years that asked people to send emails to urge Judge Trenga to make public safety the priority and not abolish the entire Terror Screening Database.

US District Judge Anthony Trenga issued a ruling on December 27, 2019 that VALIDATED the Department of Homeland Security Terror Screening Database (TSDB) and did NOT extend his September 4, 2019 order to give relief to unnamed plaintiffs including more than a million non-Americans on the list.  Read Florida Family Association’s full report.   Therefore, the DHS Terror Watchlist was still active and being used by thousands of government and business officials throughout the world.
 
While the judge did not rule the entire list unconstitutional he did order DHS to refine its procedures to comply with his standard of “due process” for adding and removing names to the TSDB.  The judge “ORDERED that Defendants submit to the Court the information and revised procedures identified in its Order dated December 27, 2019 [Doc. No. 3481 within ninety (90) days of the date of this Order, and to the extent the Defendants contend that this information and revised procedures should be placed, in whole or in part, under seal or submitted ex parte or in camera.”  DHS had until March 26, 2020 to comply with his order.

On March 30, 2021, the United States Court of Appeals for the Fourth Circuit issued its Order and Opinion. The following is the introduction to the Opinion written by Judge Wilkinson:

To  protect  against  acts  of  terrorism,  the  government  maintains  the  Terrorist  Screening Database (TSDB). One of the chief uses of the TSDB is to screen travelers in airports and at the border. The plaintiffs, twenty-three individuals who allege they are in the TSDB, object to the delays and inconveniences they have experienced in airports and at the border. They allege the TSDB program violates the Fifth Amendment’s Due Process Clause by failing to include more procedural safeguards.

The term “national security” is too often bandied loosely and carelessly about, but this is no program of marginal consequence. It lies at the very heart of our country’s effort to identify those who would inflict upon the public irretrievable loss and irreparable mass harms. By bringing this across-the-board attack on a system vital to public safety—rather than more focused individual challenges to particular law enforcement actions—plaintiffs face a demanding legal standard. Procedural due process claims require showing that the government violated constitutionally protected liberty interests. Plaintiffs cannot meet that burden. The government has had authority to regulate travel and control the border since the beginning of the nation. Indeed, this authority is a core attribute of sovereignty. The delays  and  burdens  experienced  by  plaintiffs  at  the  border  and  in  airports,  although  regrettable, do not mandate a complete overhaul of the TSDB.

Nor  are  plaintiffs’  alleged  reputational  injuries  more  persuasive.  The  government  has  not  publicly  disclosed  their  TSDB  status, the  inconveniences  protested  reflect  no  singular disapprobation, and plaintiffs have not demonstrated the loss of any legal rights due to their alleged TSDB inclusion.

The following is the conclusion of the opinion printed here in part:Several  factors  make  us  doubt  the  merits  of  plaintiffs’  arguments  under  this  framework.  

First,  the  government’s  interest  is  extraordinarily  significant  in  this  case.“[T]he Government’s interest in combating terrorism is an urgent objective of the highest order.”Holder  v.  Humanitarian  Law  Project,  561  U.S.  1, 28 (2010). The  government  claims that the TSDB is at the core of its counterterrorism apparatus and that burdening it with more procedures would markedly increase the risk of terrorist incidents.

Second, the weight of the private interests at stake is comparatively weak. In Hamdi v.  Rumsfeld,  542  U.S.  507  (2004),  the Supreme  Court  applied  the  Mathews  v.  Eldridge  balancing test and held that procedural due process required the government to give limited hearings  to  indefinitely detained  U.S.  citizens  who  were  accused  of  being  enemy  combatants in the war on terror. Id. at 538–39. In part, the Court expressed concern about the risk of erroneous determinations that individuals were enemy combatants, describing that risk as “unacceptably high.”

Third, we would not casually second-guess Congress’s specific judgment as to how much  procedure  was  needed  in  this  context. See Walters  v.  Nat’l  Ass’n  of  Radiation  Survivors, 473 U.S. 305, 319–20 (1985) (underscoring the “deference [courts] customarily must  pay  to  the  duly  enacted  and  carefully  considered  decision  of  a  coequal  and  representative  branch  of  our  Government”  because  “legislatures  are  to  be  allowed  USCA4 Appeal: 20-1311 considerable leeway to formulate such processes without being forced to conform to a rigid constitutional code of procedural necessities”); see id.at 326.

History  and  precedent  reveal  that  the  government  possesses latitude  in  regulating travel,  guarding  the  nation’s  borders,  and  protecting  the  aspirations  of  the  populace  for  tranquility and safety. For “[u]nless a society has the capability and will to defend itself from the aggressions of others, constitutional protections of any sort have little meaning.” 

Given  the  nation’s  need  for  unrelaxed  vigilance  against  catastrophic  threats,  we  can  say  with  confidence  only  that  the  TSDB  program  matters  and  that  it  conforms to long-settled propositions of law. But saying that should be enough.  Plaintiffs’ procedural  due  process  claims  fail  for  the  reasons  set  forth  above.  We  thus  reverse  the  district court’s denial of the government’s motion for summary judgment and remand this case with instructions to enter judgment in favor of the government.

The Council on American Islamic Relations (CAIR) reports that it plans to appeal the decision before the full court of appeals.

Below video is from Sept. 2019, when CAIR declared victory in overturning one of our most important federal systems for preventing another 9/11 attack: