Counter-Islamophobia Project

Islamophobia Reports

2018 Civil Rights Report: Legal Developments Regarding the Unconstitutional Terrorist Watchlist

Secret laws and executive whim are key ingredients to any form of tyranny. When these are paired with a systematic targeting of minorities, the erosion of civil liberties for everyone is inevitable. This is why the emergence and decade-long expansion of the unconstitutional federal watchlist system is of profound concern, and a core focus of CAIR’s legal and policy work.

Background

In 2003, as a part of the series of sweeping changes that greatly expanded the federal government’s executive authority, President George W. Bush issued an executive order — HSPD-6 — that for the first time in the history of the United States created a single, consolidated watchlisting process.  Prior to this, individual agencies possessed rudimentary watchlists with merely a few listed names. There was no bureaucracy dedicated to watchlisting. 

The Executive Order changed all of that. The federal government created an entirely new agency, the Terrorist Screening Center (TSC), to implement HPSD-6. The TSC in turn established the Terrorist Screening Database (TSD), which is now commonly known as the terrorist watchlist. Over time, this unconstitutional watchlist has come to include two subsets — the Selectee List, which subjects its listees to invasive screening and questioning, and the No Fly List, which imposes a flight ban on its listees.

These changes enacted by the federal government as a consequence of Bush’s Executive Order enabled the FBI and countless federal law enforcement officials across the country to create an abusive tool not subject to judicial review. The process by which one can be listed is secret and unknown.

Consequently, the unconstitutional watchlist apparatus has become one of the most significant and pervasive examples of anti-Muslim policy. Essentially, officials may anonymously place anyone they choose onto the watchlist, which now collectively contains well over one million names. The watchlist primarily ensnares innocent Muslims — both inside the United States and abroad — and is disseminated to other countries around the world.

CAIR’S Challenges to the Watchlist

In its unique role as the nation’s largest Muslim civil rights and advocacy organization, CAIR has provided legal representation and support to more individuals on the unconstitutional watchlist than any other group. It has legally advocated for infants, imams, teenagers, doctors, business owners, truck drivers, and students, among the numerous other innocent Americans who have discovered themselves listed. CAIR’s portfolio of litigation against the unconstitutional watchlist spans federal courts across the country — from Oregon to Virginia and from Florida to Michigan. 

In one of its earliest cases, the CAIR legal team represented Gulet Mohamed. In 2010, Gulet — a U.S. citizen — traveled to Somalia to visit his family. However, concerned for his safety, Gulet left Somalia after a few months to go to Yemen and learn Arabic. The situation in Yemen was also risky and so Gulet then traveled to Kuwait to live with his uncle while he studied Arabic.

Two months into his stay, Kuwaiti security agents abducted Gulet and took him to a prison where he was tortured and interrogated. After days of this treatment, his torturers sent Gulet to a deportation facility. However, when officials attempted to deport him, they were unable to because the United States had placed him on the No Fly List. 

CAIR immediately sued to allow Gulet to return to the United States. Merely days after the filing, the federal government capitulated and allowed him to fly home. CAIR continued the lawsuit, and after years of litigation, the case has established important legal precedent about the rights jeopardized by the No Fly List. It has also established precedent with regard to the level of scrutiny that federal courts should use when reviewing constitutional challenges brought by citizens on the No Fly List.

For the first time ever, as a result of CAIR’s lawsuit on behalf of Gulet Mohamed, a federal court recognized that the watchlist creates a kind of “second class citizenship,” and that the Constitution requires courts to subject the No Fly List to strict scrutiny — the most robust form of judicial review possible. 

Since that first case, CAIR has represented a number of individuals who were tortured as a result of their placement on the watchlist. Additionally, CAIR has developed a firm record for reversing cases of extrajudicial exile. This occurs when the federal government prevents American citizens from returning to the U.S. by placing them on the No Fly List. 

In one particularly egregious case, CAIR represented Yussuf Abdi, a U.S. citizen and an imam in Utah who had traveled to Kenya to bring his wife and children—who had just received their green cards—to the U.S.  When Imam Yussuf, his wife, and their five children arrived at the airport in Kenya with all their belongings, they were forced to return home upon learning that the U.S. government had placed Imam Abdi on the No Fly List. This occurred in May 2017, on the eve of the final ten days of Ramadan, the Islamic sacred month of fasting. 

Working quickly, CAIR partnered with a local organization, the Refugee Justice Network, and filed suit.  Rather than defend the lawsuit, the federal government again immediately capitulated, and allowed Imam Yussuf to return home with his wife and children, and lead his congregation in prayers during the last ten days of Ramadan. To date, CAIR has represented dozens of individuals subject to such extrajudicial exile, and has succeeded in each case in forcing the federal government to allow the people to return home to America.

CAIR’s pushback on the unconstitutional watchlist has thus made a tangible difference for both the targeted individual and the community as a whole. The federal government is aware that innocent Americans who are placed on the watchlist possess a committed advocate that can and will bring a lawsuit and litigate for however long it takes. However, it is critical to work toward making these lawsuits unnecessary. The courts of Congress must prohibit the federal government from placing innocent Americans on a secretive, unconstitutional, and error-prone watchlist.

Recommendations

Individuals:
  • If targeted as a traveler, report the constitutional violation to CAIR or another legal organization.
  • Travelers experiencing difficulties, such as denied or delayed airline boarding, or denied or delayed entry into and exit from the U.S. at a port of entry or border checkpoint should consider submitting a DHS TRIP complaint. To submit a complaint, go to: DHS TRIP. CAIR notes concerns that some DHS TRIP applicants complain of delays in seeking a resolution and the lack of due process and transparency in refuting government reasoning for placement on the watchlist.
  • Contact your member of Congress to demand that the unconstitutional federal watchlist system be fixed. Americans who are wrongly placed on the unconstitutional federal watchlist must be afforded the constitutional right to due process, and the ability to effectively challenge inappropriate designations.
  • Email editors of national media outlets at This email address is being protected from spambots. You need JavaScript enabled to view it., This email address is being protected from spambots. You need JavaScript enabled to view it., and This email address is being protected from spambots. You need JavaScript enabled to view it. to speak out against the unconstitutional watchlist as contrary to American values.
Elected Officials: 
  • Utilize every opportunity to make public statements against the unconstitutional watchlist as contrary to American values.
  • Congress must investigate and reform the unconstitutional federal watchlist to ensure that Americans who are wrongly placed on the unconstitutional watchlist are afforded the constitutional right to due process and the ability to effectively challenge inappropriate designations.
    • This includes that Congress ensure accountability within the watchlist designation procedure, due process, and an appeals process for individuals to challenge erroneous designations. Members of Congress must persistently question NSA, DOJ, FBI, and DHS agency officials responsible for managing the program about these concerns.
  • As the watchlist selectively limits the constitutional rights of Americans who are, or appear to be, Muslim, Congress must reject mislabeled and ineffective policies, such as those tying the watchlist to federal background checks.
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