[Infowarrior] - Court: Government Must Reveal Watch-List Status

[Richard Forno]

Court: Government Must Reveal Watch-List Status to Constantly Detained
Americans

By Ryan Singel EmailApril 24, 2008 | 8:51:13 PMCategories: Watchlists

http://blog.wired.com/27bstroke6/2008/04/gov-must-reveal.html

Eight Americans of south Asian and Middle Eastern descent who were
repeatedly detained at the border for questioning will be able to learn if
they are actually on the government's terrorist watch list, a federal court
in Illinois ruled last week, marking the first time that citizens have been
able to learn whether they have been added to a sprawling and error-prone
list used for screening at borders and traffic stops.

The government invoked the powerful state secrets privilege in the case,
arguing that letting the plaintiffs know if they are or aren't on the list
would harm national security since that could alert them to the fact they
have been under government scrutiny.

But since the government admits it has stopped the six men and two women
more than 35 times, federal Magistrate Judge Sidney Schenkier of the United
States Northern Illinois District Court dismissed that argument. Instead he
found that the government "failed to establish that, under all the
circumstances of this case, disclosure of that information would create a
reasonable danger of jeopardizing national security."

The plaintiffs, most of whom are Muslim, filed suit (.pdf) against the
Department of Homeland Security and the FBI in June 2005. They say none of
them have any links to terrorism, but are continually stopped and questioned
due to faulty watch lists. They charge government agents have unjustly
restrained, confined and questioned them, sometimes for more than four
hours, because some have been unfairly put on a watch list, while others say
they are continually misidentified as someone on the list.

The court's rebuff (.pdf) of the government's use of the state secrets
privilege is highly unusual, as courts are rarely willing to challenge the
executive branch on mattes of national security. Experts call the state
secrets privilege the "nuclear option," and the Bush administration has used
it widely to dismiss cases challenging its warrantless wiretapping program
and the CIA's use of secret overseas prisons.

The lawsuit is also notable since it breaks new legal ground in regards to
the government's terrorist watch list, which lacks any mechanism for
citizens to challenge their placement on the list. Government audits have
repeatedly criticized the operation of the list, which has inadvertantly
snagged high-powered nuns, senators, children and government employees with
security clearances.

The Terrorist Screening Center, which runs the list, says it has been
pruning the list and removing errant entries, even as the list grows by an
estimated 20,000 names a month. While the TSC says the majority of the names
on the list are foreigners, most of the people compared against the list are
Americans, who are checked against the list when they are stopped for a
traffic violation, enter or leave the country or fly domestically.

Additionally, the judge ruled that the state secrets privilege against
disclosing sources and methods does apply to FBI investigative files and
terrorism information in its TIDES database, but that the government should
show those documents to the judge in secret, so the judge can decide what
portions of those files can be safely released.

The potential class-action lawsuit accuses the government of violating
Americans' Fourth and Fifth Amendment rights by exaggerating the risks of
persons it puts on the list and not having robust ways of dealing with name
mismatches. That, the plaintiffs allege, led government agents to
unconstitutionally detain the men and their families for hours and conduct
illegal pat down searches.

In one case, Customs agents stopped Dr. Khalid Bhatti, a gastroenterologist
who has been a U.S. citizen since 1979, searched him on the hood of his car,
in front of his wife and daughter-in-law. Agents then handcuffed him, led
him away for questioning and examined his cellphone and Palm Pilot.

For its part, the government admits nearly all of the secondary screenings
occured -- including 11 stops of Oussama Jammal. They also admit that
sometimes agents handuffed the plaintiffs, including handcuffing one
plaintiff to a chair during questioning.

But the government denies (.pdf) that any of the stops were "unjustified,"
or that its 800,000 name-long watch list is overbroad or negligently
administered.

Justice Department spokesman Charles Miller declined to comment on the
ruling. He also declined to indicate if the government planned to appeal the
decision, though that is highly likely.

The plaintiffs are asking the court to force the government to change how it
handles name mismatches, how Americans are described on the list, and
reasonable policies for family members and children that have to wait for a
parent to be released from questioning by government agents.