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This June 9 photo shows the TSA security checkpoint in Pittsburgh International’s Landside terminal in Imperial, Pennsylvania. (AP file photo)
This June 9 photo shows the TSA security checkpoint in Pittsburgh International’s Landside terminal in Imperial, Pennsylvania. (AP file photo)

Commentary: Rule of law finally prevails over U.S. ‘watch list’

By Noah Feldman
Bloomberg Opinion

In an important constitutional decision, a federal district court in Virginia has held that the government must give people on the Terrorist Screening Database, better known as the “watch list,” the opportunity to challenge the evidence that put them there.

History will someday find it astonishing and outrageous that it took 18 years after the Sept. 11 attacks to restore this kind of procedural protection of people’s right to travel unmolested. Yet, late as it is, the decision also demonstrates that careful constitutional reasoning can reach common-sense conclusions — and make the government comply.

The watch list — or, in official government parlance, TSDB — is not the same thing as the no-fly list. In fact, the no-fly list is a subset of the watch list.

If you are on the watch list but not the no-fly list, you aren’t banned from getting on an airplane. But you can be subject to a whole range of invasive procedures when you try to travel inside the U.S. or across the border.

The 23 plaintiffs in the case reported being regularly arrested, strip-searched, handcuffed and interrogated for hours at the border, as well as having their electronics and those of their family members and traveling companions opened and searched. They also reported long delays and interrogation before getting on airplanes, even if they were ultimately allowed to travel.

Back in 2015, the same federal court in Virginia held that if you are on the no-fly list, the Department of Homeland Security must inform you of that fact, and give you the chance to provide evidence that you shouldn’t be. If DHS decides to keep you on the no-fly list anyway, the court held that it must provide you with an unclassified list of reasons, and the final decision is subject to judicial review.

The current case addressed the issue of whether and how you can challenge inclusion on the watch list. Until the court’s ruling, DHS has always taken the position that it never needs to tell you if you’re on the list, let alone give you any opportunity to show why you shouldn’t be on it, or any indication of why you were included.

The watch list represents government bureaucracy at its most secretive and unresponsive. It’s about as un-American as a government procedure can be — except that it has been standard operating procedure for years now.

In responding to the plaintiffs’ arguments that they should be given notice if they are on the list and an opportunity to challenge their inclusion, the government argued it didn’t need to do any of those things. And it claimed that the plaintiffs didn’t even have standing to bring the case to court, because they had not been injured by the delays in their travel or by their detentions or interrogations.

The court correctly held that people who are being regularly detained, interrogated and delayed in travel both within and outside the U.S. have suffered an injury sufficient to give them the right to appear in court and challenge it. That was only the first step of the decision.

Having decided that the plaintiffs could bring the case, the court then had to decide what procedures they were entitled to under the Constitution.1 The guideline courts use in making such decisions is a 1976 Supreme Court case called Mathews v. Eldridge. Only lawyers have heard of it, but it has major consequences for daily life.

The case involved the question of “what process is due” to someone who was denied Social Security benefits. To answer that, the court suggested a general framework. It said that courts should consider “the private interest that will be affected by the official action”; “the risk of an erroneous deprivation” of the person’s interest using existing procedures combined with “the probable value, if any, of additional or substitute procedural safeguards”; and, finally, the government’s interest, “including the function involved in the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”

Translated out of legalese and into English, the Mathews test tells the court to engage in a cost-benefit analysis. It says a court should weigh the value of benefits to the individual of procedures to protect his rights against the government’s interest in not wasting too much time and money.

Applying this test, the Virginia federal district court concluded that the government was violating people’s constitutional rights by putting them on the watch list without ever telling them or giving them any chance to respond. The court then instructed the government and the plaintiffs to come back to it with suggestions for an appropriate procedure.

In essence, the court held that the Kafkaesque situation faced by people on the watch list must end. If it follows the guidelines it set in the no-fly list case, the court will likely require the government to admit to people that they are on the watch list if they challenge their status. The court is also likely to require the government to consider people’s reasons to be taken off the list, and to provide some explanation if they are not. Judicial review of the decision would ensure that the final decision-maker isn’t the executive branch, but an independent court.

All these details may seem trivial. They aren’t. The constitutional right to due process of law is built out of painstaking procedures that give ordinary people notice of what the government is doing to them and the opportunity to be heard by a neutral decision-maker. The details, in other words, are at the heart of what it means to live under the rule of law.

Footnote

  1. The court said that the plaintiff’s constitutional rights were identical to those guaranteed to them under the Administrative Procedure Act.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. This column does not necessarily reflect the opinion of Minnesota Lawyer, the Bloomberg editorial board or Bloomberg LP and its owners.

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