SAN FRANCISCO (CN) – Arguing before a Ninth Circuit panel Thursday, a U.S. government lawyer defended an anti-terrorism program that critics say puts innocent Americans on a watch list just for being Muslim or engaging in innocuous activities like taking photos in public.
“If you have that innocent piece of information in the larger picture, it can take on greater magnitude and be the missing piece to fill in the complete puzzle so you can identify a potential national security interest,” Justice Department lawyer Daniel Aguilar told the three-judge panel.
Lead plaintiff Wiley Gill and four other California men sued the government in 2014, claiming police questioned some of them after their names landed on a terror watch list just for practicing their religion, buying computers at Best Buy, and in one case, waiting for his mother at a train station.
Last year, U.S. District Judge Richard Seeborg ruled in favor of the government, finding its enactment of a “functional standard” for its National Suspicious Activity Reporting Initiative (NSI) did not violate federal law.
The NSI empowers local and state police to submit Suspicious Activity Reports about potential terror threats. Analysts process the initial reports in “fusion centers,” and the vetted information is shared with other law enforcement agencies and used for counterterrorism investigations and operations.
The plaintiffs claim a lower standard for flagging people as potential threats was adopted without public notice or comment in violation of the Administrative Procedure Act.
The functional standard, last revised in 2015, defines suspicious activity as “observed behavior reasonably indicative of pre-operational planning related to terrorism or other criminal activity.”
On Thursday, ACLU attorney Linda Lye argued the functional standard violates a longstanding rule that requires “reasonable suspicion” to collect intelligence on people.
The government says a Suspicious Activity Report is not the “product of investigation” for the purpose of criminal prosecution and therefore it does not qualify as “criminal intelligence” subject to the stricter standard.
Lye scoffed at that argument.
“By its own terms, the functional standard calls for a multi-stage evaluation, vetting and investigation process,” she said.
The government also maintains that it was not required to give notice or seek public comment when it adopted the new standard because it was not a final agency action. Aguilar said the standard merely serves as a guideline, not a legal requirement enforceable with penalties.
“If a state or local agency wants to meet a higher standard before they circulate a [Suspicious Activity Report], they are free to do so,” Aguilar told the panel. “There are no legal consequences.”
But failing to follow the program’s requirements does carry one potential penalty. The FBI can revoke access to its intelligence-sharing database if participating law enforcement agencies fail to follow its rules, according to the user agreement each agency signs to access the system.
U.S. Circuit Judge Milan Smith asked if the FBI ever revoked an agency’s access to its database for failing to submit a Suspicious Activity Report based on the functional standard.
Lye said that question can’t be answered because her clients were not allowed to seek discovery on whether the FBI ever enforced its rules.
The ACLU lawyer urged the panel to send the case back to district court and consider ordering the judge to let her clients pursue that evidence.
“It would be grossly unfair to rule on that issue for lack of evidence in the record because plaintiffs specifically sought jurisdictional discovery on the final agency action issue,” Lye said.
After 30 minutes of debate, the panel took the arguments under submission.
U.S. Circuit Judge Andrew Hurwitz joined Milan on the panel, as did Judge Richard Eaton, sitting on the panel by designation from the U.S. Court of International Trade.