Advocates Urge 4th Circ. To Strike Down Terrorist Watchlist

Law360 (June 3, 2020, 9:02 PM EDT) -- The U.S. government's controversial terrorist watchlist is "shrouded in secrecy," a "source of constant fear" in Muslim communities, and reminiscent of Japanese internment, civil liberties and policy organizations told the Fourth Circuit in new court filings.

In friend-of-the-court briefs filed Tuesday and Wednesday, organizations including the American Civil Liberties Union, Cato Institute and Muslim Advocates urged the federal appeals court to uphold a lower court ruling that the list, authorized in the wake of the 9/11 attacks, unconstitutionally restricts members' ability to travel freely without a legal remedy.

The organizations also alleged that the U.S. Department of Homeland Security's list disproportionately targets Muslims, all while keeping the individuals on the list secret and providing little avenue for individuals to challenge their placement.

"The government's terrorist watchlists are a source of constant fear for the Muslim community," Muslim Advocates, a civil rights organization, wrote Wednesday. "The government's terrorist watchlists create a secret and separate society of individuals who are harassed, mistreated, and targeted for special investigation — all without notice or a meaningful chance to challenge the evidence against them."

Another brief, filed by a coalition of civil rights groups including the ACLU, Arab American Institute and Center for Constitutional Rights, contended that the standards to merit adding a name to the list are "extremely low, vague, and overbroad," and "even lower than what is required for a brief investigatory police stop."

The Seattle University School of Law's Korematsu Center, named for the Japanese-American man at the center of the 1944 U.S. Supreme Court case challenging Japanese internment, invoked this period of U.S. history in its amicus brief, noting that detention of Japanese-Americans was also justified with national security concerns.

"If the page that records the history of disfavored minorities in our country teaches anything, it is that the government's justifications for why it needs to curtail the rights of minority groups should be viewed with caution," the center wrote Tuesday.

Sofie G. Syed of Patterson Belknap Webb & Tyler LLP, an attorney for the center, added that while the high court has disavowed its Korematsu ruling upholding the Japanese exclusion order, courts must be wary of repeating history.

"The center is always interested in reminding courts of the danger of executive overreach, especially where national security is involved," she told Law360 on Wednesday.

The advocacy groups are supporting a suit brought by the Council on American-Islamic Relations on behalf of nearly two dozen American citizens, mostly Muslims, who say they've faced undue scrutiny and hardship due to their inclusion on the watchlist.

According to CAIR, the watchlist, known as the Terrorism Screening Database, "imposes a kind of second-class status on listees." The individuals in the suit, including a U.S. Air Force veteran, say they have been handcuffed at gunpoint and detained at the border for up to 12 hours.

A Virginia federal court sided with CAIR last year, with U.S. District Judge Anthony Trenga finding that the list's vague standards and "lack of any meaningful restraint" on placement "is precisely what offends the due process clause."

CAIR has also brought a similar challenge to the watchlist on behalf of Muslim Americans in Maryland federal court, but that judge has yet to issue a ruling. 

The federal government appealed the Virginia court's ruling to the Fourth Circuit, claiming that the additional scrutiny and questioning the challengers have faced "do not meaningfully differ from the ordinary burdens and inconveniences to which all travelers are subjected when traveling by air or crossing the border."

"The support of our amici means the world to us," Justin Sadowsky, an attorney with CAIR, told Law360. "We are extremely grateful in their aid in what has been an important and long battle against an extralegal assault on the rights of Americans in the name of national security."

"If the government can target Muslims today, they could target anyone tomorrow," he added.

A spokesperson for the U.S. Department of Justice didn't immediately respond to a request for comment Wednesday.

The Muslim Americans are represented by Lena F. Masri, Gadeir I. Abbas and Justin Sadowsky of the Council on American-Islamic Relations' legal defense fund.

The federal government is represented by Sharon Swingle and Joshua Waldman of the DOJ's Civil Division.

The case is Anas Elhady v. Charles Kable, IV, case number 20-1119, at the U.S. Court of Appeals for the Fourth Circuit.

--Additional reporting by Nadia Dreid. Editing by Haylee Pearl.

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