Fourth Circuit Upholds FBI Terrorist Watch List

A three-judge panel upheld the constitutionality of the government’s terrorist database, overturning a ruling which said that it violated the constitutional rights of Muslim-Americans.

The traveler-screening area at San Diego Airport, with few passengers queuing up on Sept. 10 during the coronavirus pandemic. (Courthouse News photo/Barbara Leonard)

WASHINGTON (CN) — Three conservative judges on the Fourth Circuit upheld the FBI’s terror watch list Tuesday, unanimously overturning a federal judge’s ruling which deemed it unconstitutional. 

“We have such imperfect comprehension of the consequences of our interventions as to raise the prospect here of doing far more harm than good,” U.S. Circuit Judge J. Harvie Wilkinson III, a Reagan appointee, penned in the opinion

In September 2019, U.S. District Judge Anthony Trenga in Alexandria, a Bush appointee, ruled that the government’s justifications for placing people in their Terrorist Screening Database (TSDB), which consists of over 1 million people identified as “known or suspected terrorists,” were too vague and violated constitutional rights. 

Government lawyers have insisted that the program is vital to national security, and urged the judges during oral arguments not to intervene with the executive branch’s administration of the list and its national security judgments. But the nearly two dozen Muslim U.S. citizens who brought the lawsuit said the list has created significant and unconstitutional burdens for them.

In their petition, numerous Muslim-Americans say that they are routinely pulled aside in the airport for enhanced screenings, causing them to miss connecting flights. Others say that they have been detained at borders for up to 12 hours. Multiple plaintiffs claimed that they have been put in handcuffs, some say it has been difficult to get visa applications and employment, while others voiced that it’s harder to buy licenses and firearms.

But Wilkinson said the delays aren’t much different than standard delays that many travelers face. 

“The delays and burdens experienced by plaintiffs at the border and in airports, although regrettable, do not mandate a complete overhaul of the TSDB,” Wilkinson wrote on behalf of himself, and Circuit Judges Julius Richardson and A. Marvin Quattlebaum, both Trump appointees. 

Wilkinson ruled that the Muslim-Americans didn’t adequately demonstrate that they had been denied crossing borders, obtaining permits and the like — just that they had experienced delays. In fact, they were allowed to go through security without incident “a fair percentage of the time.” None of them alleged that they were on the “no fly” list. 

“Speculation coupled with a few isolated incidents inadequately tethered to TSDB status is not enough,” Wilkinson wrote.  “We are simply not permitted by the Supreme Court to give dispositive weight to outlier experiences.”

Like he suggested during oral arguments, Wilkinson said it would have been better for plaintiffs to file individual lawsuits based on their own experiences. 

“Facial challenges have their drawbacks,” Wilkinson said. “By taking a roundhouse swing at the TSDB program, plaintiffs have raised the bar they must clear in order to prevail.”

Another government terror watch list, the Specially Designated Nationals list, came under federal scrutiny Tuesday by the Supreme Court, which heard oral arguments for a class action lawsuit involving 8,185 people who were falsely placed on the list. 

%d bloggers like this: