Court Rules that Terrorism Screening Database is Unconstitutional: Elhady v. Kable, U.S. District Court for the Eastern District of Virginia

The District Court for the Eastern District of Virginia issued an order this week in Elhady v. Kable, finding that the Terrorism Screening Database is unconstitutional because it does not provide adequate post-inclusion notice or opportunity to contest the evidence that the government relies upon to include a person.

The criteria for including a person in the TSDB reads like a laundry list of constitutional rights – the government can decide that a person is a potential terrorist based on their religion, ethnicity, exercise of free speech, or the people with whom they associate.

Although inclusion in the Terrorism Screening Database does not technically prevent a person from flying (the no-fly list is a sub-list within the TSDB), it results in extensive adverse consequences for people in the database and its practical effect is to prevent them from traveling freely.

Court Rules that the Terrorism Screening Database is Unconstitutional

The District Court for the Eastern District of Virginia issued an Order this week finding that the Terrorism Screening Database is unconstitutional.

What is the Terrorism Screening Database (TSDB)? How does it work, and how do you get listed in it?

What is the Terrorism Screening Database (TSDB)?

The Terrorism Screening Database (TSDB) is compiled by the Terrorism Screening Center (TSC). The TSC is “an interagency operation within the [FBI] that also involves the Department of Homeland Security (‘DHS’), the National Counterterrorism Center (‘NCTC’), the Transportation Security Administration (‘TSA’), and United States Customs and Border Protection (‘CBP’).

The TSDB contains biographic and biometric information on about approximately 1.2 million people, including approximately 4600 U.S. citizens or lawful permanent residents, that is shared with government and private agencies around the world:

The TSDB is a centralized collection of information about listed individuals, including biographic and biometric data, that is compiled and maintained by the TSC. The information contained in the TSDB, which is unclassified, is ‘updated continuously and disseminated around the country and world in real-time…’ As of June 2017, approximately 1.2 million individuals, including approximately 4600 United States citizens or lawful permanent residents, were included in the TSDB.

Who is Included in the Terrorism Screening Database (TSDB)?

People are “nominated” for inclusion in the TSDB by federal government agencies or by foreign governments and then approved by the TSC based on “reasonable suspicion that the individual is a known or suspected terrorist.”

Nominated individuals are added to the TSDB if their nomination is based on ‘articulable intelligence or information which, based on the totality of the circumstances and, taken together with rational inferences from those facts, creates a reasonable suspicion that the person is engaged, has been engaged, or intends to engage, in conduct constituting, in preparation for, in aid or furtherance of, or related to, terrorism and/or terrorist activities.

Who is the Information Shared with?

Information contained in the TSDB is available through NCIC and is shared with government, law enforcement, and private organizations throughout the country and worldwide, including:

• Federal, state, and foreign government agencies who use the information for screening;
• Customs and Border Patrol;
• The Coast Guard;
• TSA – anyone on the TSDB is designated as “high risk” and subject to additional screening and interrogations;
• The State Department, which uses the TSDB to deny visa waivers, visas, and passports;
• US Citizenship and Immigration Services (USCIS), which uses the TSDB to deny immigration, asylum, and naturalization benefits;
• DHS, which uses the TSDB to screen government employees and contractors;
• The Department of Defense (DOD), which uses the TSDB to screen people entering military bases;
• Government contractors;
• Private corporations connected with infrastructure, transportation, or airports;
• The FBI, which uses the TSDB for screening and investigations, and shares the information with “more than 18,000 state, local, county, city, university and college, tribal, and federal law enforcement agencies;”
• More than 60 foreign governments; and
• Private corporations who are authorized to access NCIC.

What is the No-Fly List?

The no-fly list is a subset of the TSDB which prohibits flagged individuals from boarding airplanes.

People who are on the TSDB but not on the no-fly list are not prohibited from boarding airplanes, but they are subjected to more intense scrutiny at airports.

What is the Traveler Redress Inquiry Program (TRIP)?

Travelers who want to challenge their inclusion in the TSDB can apply for a review through DHS TRIP (Traveler Redress Inquiry Program).

Although the program has “inquiry” in its name, it does not answer inquiries…

When someone submits a “Traveler Inquiry Form” to DHS TRIP, DHS reviews the information provided, and, in 98% of cases, finds that the traveler’s difficulties were unrelated to the TSDB. When the individual is on the TSDB, the TSC Redress Office then conducts a review to determine whether the person should be removed from the TSDB.

In any case, they do not inform the person whether they were on the TSDB or whether they were removed from the TSDB, and information on how many people are actually removed after a review of their status is unavailable.

Using the No-Fly List to Bar Americans is Unconstitutional

Federal courts have already found that the use of the no-fly list to prevent Americans from boarding airplanes was unconstitutional:

A subset of the people on the watchlist are also put on the more restrictive No Fly List, which bars them from boarding planes in the United States or flying through American airspace. In 2014, a federal judge in Oregon ruled that the government’s use of the No Fly List to bar Americans from boarding planes was unconstitutional, requiring the Department of Homeland Security to overhaul its Traveler Redress Inquiry Program procedures.

Similarly, use of the no-fly list to prevent an American from returning to his home in the United States is unconstitutional:

Later that same year, Judge Trenga struck down a use of the No Fly List to keep a particular American, Gulet Mohamed, from boarding a flight home, effectively exiling him. The judge’s ruling about the broader watchlist on Wednesday built on his earlier opinion, which he quoted from extensively.

The problem is not the existence of the no-fly list – it’s the lack of any reasonable method to challenge your inclusion on the no-fly list. DHS TRIP, which is operated by the same agency that put you on the no-fly list, provides no opportunity for review of the decision by an independent and neutral decision maker.

In response to these cases, DHS changed its TRIP policies, but only for persons included on the no-fly list. The subject of Elhady v. Kable is the DHS TRIP policies for persons who are included in the TSDB but who are not on the no-fly list.

Why the Court Found that the Terrorism Screening Database is Unconstitutional

The Court found that the process for inclusion in the TSDB and removal from the TSDB via DHS TRIP violate Due Process, that they infringe on multiple constitutional rights, that they specifically violate citizens’ right to travel, and that they cause reputational harm to persons included on the list.

The Criteria Used to Include a Person

The criteria used to include a person in the TSDB can include constitutionally protected activities, including the person’s race, religion, right to speech, and right to assembly:

In determining whether to accept, reject, or modify a nomination, the TSC may consider, but not solely base its decision on, an individual’s race, ethnicity, religious affiliation, or ‘beliefs and activities protected by the First Amendment, such as freedom of speech, free exercise of religion, freedom of the press, freedom of peaceful assembly, and the freedom to petition the government for redress of stress of grievances… The TSC may also consider an individual’s travel history, associates, business associates, international associations, financial transactions, and study of Arabic as information supporting a nomination to the TSDB.

It’s almost as if the government came up with a list of constitutionally protected activities and said, “this is our criteria.” It’s a blatant statement by our government that they believe they are above and not bound by the Bill of Rights.

How Inclusion on the TSDB Affects Travelers

Although, technically, inclusion in the TSDB does not prohibit travel, it results in harassment by not only TSA and border officials but also by every government, law enforcement, or other agency that has access to NCIC.

For example, Elhady:

• Was arrested while traveling by car from Canada to the US, handcuffed, held in a room for over ten hours, and repeatedly interrogated about his family and associates;
• Required medical attention during the detention that resulted in a need for basic life support and was transported to and from the hospital in handcuffs (why was he hospitalized with a need for basic life support? The opinion does not say…);
• On two other occasions, was detained at the border, handcuffed, locked in a cell, stripped of his belongings, and prevented from contacting his attorney;
• Had his phone confiscated multiple times, was pressured to give agents his password, and was questioned about his phone’s contents;
• Was told by an FBI agent that his cell phone conversations were being monitored; and
• Was told by CBP agents, “Are you serious? Someone like you should have stopped trying to cross the border by now.”

Other plaintiffs had similar experiences and felt that they were unable to travel freely due to the harassment.

The Government Must Provide Post-Inclusion Notice and Opportunity for a Hearing

The Court found that the government is not required to provide notice or a hearing prior to a person’s inclusion in the TSDB – as a practical matter, this would interfere with law enforcement operations and, in the Court’s opinion, this outweighs the constitutional concerns.

But the government must provide:

• Post-inclusion notice as to whether a person is included or remains in the TSDB, the criteria used to include the person, and the evidence that was relied upon to include the person; and
• An opportunity to rebut the evidence that was used to include a person in the TSDB.

The Court did not determine what the new procedures should be, and, instead, ordered the parties to submit briefs outlining the appropriate remedy.

Federal Criminal Appellate Lawyer in Columbia, SC

Elizabeth Franklin-Best is a federal white collar criminal defense and federal appeals lawyer located in Columbia, SC.

For more information, call us at (803) 331-3421 or send us an email to set up a consultation about your case.