Judge considers whether terror watchlist is unconstitutional

FILE - In this Jan. 30, 2017, file photo, attorney Gadeir Abbas speaks during a news conference at the Council on American-Islamic Relations (CAIR) in Washington. A federal judge will hear arguments on whether a government watchlist of more than 1 million known or suspected terrorists violates the Constitution. The Council on American-Islamic Relations sued in 2016 on behalf of Muslim Americans who say they were wrongly placed on the list and suffered negative consequences as a result. (AP Photo/Alex Brandon, File)

ALEXANDRIA, Va. – A federal judge says he will rule in the near future on the constitutionality of a government watchlist that includes more than 1 million people the FBI considers to be "known or suspected terrorists."

The Council on American-Islamic Relations sued in 2016 to challenge the watchlist on behalf of Muslim Americans who say they were wrongly placed on it and suffered negative consequences as a result.

The plaintiffs argued Thursday at a hearing in Alexandria that the list is disseminated so broadly that those listed face not only travel woes at airports and border crossings but also difficulty completing financial transactions and interacting with police. They also say the standard for inclusion is overbroad and innocent Muslims are routinely listed by mistake.

Government lawyers say the list is a necessary tool to fight terrorism and that plaintiffs exaggerate the consequences of inclusion.

The watchlist, also known as the Terrorist Screening Database, is maintained by the FBI and shared with a variety of federal agencies. Customs officers have access to the list to check people coming into the country at border crossings, and aviation officials use the database to help form the government's no-fly list.

The watchlist has grown significantly in size over the years. As of June 2017, approximately 1.16 million people were included on the watchlist, according to government documents filed in the lawsuit. In 2013, the number was only 680,000. The vast majority are foreigners, but according to the government, there are roughly 4,600 U.S. citizens and lawful permanent residents on the watchlist as well as of 2017.

CAIR lawyer Gadeir Abbas said the intrusions imposed on those listed are all for naught; he argued that the list is worthless in terms of preventing terrorism. He noted that Omar Mateen, the man who shot and killed 49 people at an Orlando nightclub in 2016, was at one time on the list but was later removed from it. Others who have committed terrorist acts have never even been included on the watchlist.

"The government cannot know who among the innocent will become a terrorist in the future," Abbas said. Because the government has no good standard for inclusion on the list, it falls back to stereotypes and routinely imposes the burden of watchlisting on innocent Muslims.

Justice department lawyer Amy Powell disputed Abbas' analysis and said it's impossible to know what types of terrorist attacks might have been foiled by placing those on the watchlist under greater scrutiny.

She also said that some of the consequences described by plaintiffs in the case, including being handcuffed at border crossings in front of family and having police approach them with guns drawn, may be frightening but are not so serious as to merit judicial intervention.

She said border agents have the right to take precautions when presented with a potential danger because "they have no idea what's coming over the border."

One of the plaintiffs, Hassan Shibly, who works in CAIR's Florida chapter, said he has been searched dozens of times because of his watchlist status and was once handcuffed in front of his grandmother at a border crossing in Detroit.

"It's humiliating," he said. "The government lawyers could never make the arguments they made in court today if they had personally faced the same treatment we've faced," Shibly said after the hearing.

The plaintiffs have alleged that the watchlist intrudes on many aspects of life beyond the ability to travel. Some Muslims have said they believe that financial transactions and interactions with law enforcement have been tainted because the government disseminates the list so broadly.

The case has revealed that the list goes not only to approximately 18,000 state and local law-enforcement agencies, but hundreds of private entities that are deemed "law enforcement adjacent" by the federal government also receive the list. Lawyers with CAIR say the government has interpreted it so broadly that animal shelters and churches have been given access. Government lawyers have responded that these animal shelters have police powers, and the churches are police forces at private schools run by religious organizations.

As for financial transactions, though, the evidence is murkier. The government has been adamant that banks and financial institutions do not get access to the list.

When the lawsuit was first filed, it included an allegation that one person believed to be on the watchlist was denied an opportunity test drive a car after a salesman ran his driver's license before turning over the keys, and came back to report that the man's license showed up on the terrorist watchlist. It turned out that the problem was caused because his name was similar to one on an entirely different list, maintained by the Treasury' Department's Office of Foreign Assets Control.

The government does not confirm whether an individual has been placed on the watchlist, and its secrecy leaves people to wonder whether any unusual interaction was caused by the watchlist. One plaintiff, Hassan Fares, described difficulty opening a bank account, and not knowing whether the problems stemmed for watchlist placement or not.

"It's difficult to determine whether it's random or whether it's connection to something else," he said. "Suspicion just leads to paranoia."

U.S. District Judge Anthony Trenga said after the hearing that he would issue a written ruling at a later date.