A District Judge rejected pleas by lawyers for the US Attorney General William Barr (pictured) to dismiss the lawsuit.(Credit: Office of Public Affairs from Washington DC)

Elham Asaad Buaras

A federal judge has ruled that 39 Muslim Americans can proceed with a lawsuit challenging the constitutional legality of the US Government’s watchlist (Terrorist Screening Database).

The plaintiffs — 37 nationals and two legal residents — allege that the list “subjects them to constitutionally impermissible detentions, searches, and screening at airports and land border entries, or in some cases, denial of air travel altogether.”

On July 20, Maryland District Judge Paula Xinis rejected pleas by lawyers for the US Attorney General William Barr and other Government officials to dismiss the lawsuit.

In her decision, Xinis slammed the screening processes, finding that “existing procedural protections are inscrutable, opaque.” She noted that many people on the No Fly List who appeal to be removed end up in an administrative “black hole.”

She also explained that “[p]robing interrogations about travel to Muslim-majority countries, religious pilgrimages, learning Arabic, attending mosques, affiliations with Muslim organizations, religious donations, and associations with other Muslims” raise an inference that decisions to target Muslims are tied “directly, and perhaps solely, to [the] plaintiffs’ race, lineage, religious, and national origin.”

Gadeir Abbas, a lawyer for the Council on American-Islamic Relations (CAIR) who is representing the plaintiffs, said the ruling is the broadest legal challenge to the watchlist that has made it this far in the legal process and “is the latest sign that the era of the federal government’s extrajudicial targeting of innocent Muslims will not go on forever.”

CAIR said the court ruling “paves the way for CAIR’s legal team to depose agency officials and obtain documents throughout the federal government and highlights the role played by the shadowy, supra-agency body called the Watchlist Advisory Council, which oversees the federal government’s watchlisting system.”

A judge in Virginia ruled in favour of Muslim plaintiffs last year in a similar challenge that was focused a little more narrowly, but that case has been delayed on the question of what kind of remedy should be crafted.

The watchlist is maintained by the FBI and shared with a variety of federal agencies. Customs officers have access to the list to check people coming into the country at border crossings, and aviation officials use the database to help form the no-fly list, which is a much smaller subset of the broader watchlist.

The watchlist has grown significantly over the years. As of 2017, approximately 1.16 million people were included on the watchlist, according to Government documents. The vast majority of people on the watchlist are foreigners, but according to the Government, as of 2017, there are roughly 4,600 US nationals and lawful permanent residents included.

The lawsuit alleges that Muslims are placed on the list without good reason and without a reasonable opportunity to clear their names. Placement on the watchlist has resulted in travel and business difficulties for those who say they were placed on the list improperly.

A 2014 Intercept analysis of Government watchlist guidance documents show, the list has broad criteria for inclusion and doesn’t require “concrete facts” to support nominations to it. Real-life examples of false positives are risible.

The watchlist has caused travelling difficulties for people ranging from the late Senator Edward Kennedy to the late civil rights icon John Lewis, to an eight-year-old American child. In court papers, Government lawyers argued for dismissal on numerous grounds and defended the administration of the watchlist.

Just June, a coalition of advocacy organizations from across the political spectrum filed amicus briefs in support of CAIR’s efforts to defend the Virginia federal court’s decision on appeal.

Those groups include the ACLU, the Center for Constitutional Rights, the CATO Institute, the Electronic Frontier Foundation, and the Korematsu Center, among others.