After September 11th, 2001, the FBI and
Department of Homeland Security created a federal “watchlist” of alleged or suspected terrorists in order to protect national security called the“Terrorist Screening Database” or TSDB. By 2019, the list had grown to 1.2
million names. Although the vast majority of people on the list are foreigners,
there are approximately 4,600 American citizens on it leading many to begin to
question its constitutionality…
In September of 2019, the Council on American-Islamic Relations (CAIR) filed a lawsuit against the FBI on behalf of twenty-three Muslim Americans who were placed on the watchlist, but felt they were innocent of its accusations and had no reason to be on it. These Muslim Americans have been proven to not satisfy the definition of a known terrorist as none of them have been “convicted, charged or indicted for any criminal offense related to terrorism, or otherwise”. While on the watchlist, these citizens are detained, subject to multiple security screenings at airports and customs, and in some cases, even barred from flying certain airlines. People on the list report being profiled, handcuffed, and interrogated while trying to travel. Although the watchlist is a major tool utilized by the FBI for screening needs, we cannot ignore the issue of profiling and religious discrimination, as vast majority of people on the list are of Islamic faith.
The key issue brought forth in this case is if the watchlist violates the plaintiff's due process rights as they argued they “did not receive notice of why they were being put on the list or an opportunity to contest derogatory claims” therefore they feel they were not given fair treatment. Although this case mainly discusses due process, I will also consider if creating a watchlist that discriminates and stereotypes primarily one religion is an issue of establishment.
The court ruled in favor of CAIR because Judge Anthony J Trenga of the United States District Court for the Eastern District of Virginia argued that the standard for inclusion in the database was too vague, therefore, discrimination could easily occur without proper justification. Judge Trenga referenced similar controversial No Fly Lists to argue that the effect that the watchlist has on individuals burdens their rights to travel and increases their risk of being detained or questioned in front of family members. He claims that the watchlist can cause extensive harm to peoples “families, careers, and ability to travel”. Although the court ruled in favor of CAIR, it failed to say what should replace the watchlist as a security measure to “adequately protect a citizen’s constitutional rights while not unduly compromising public safety or national security”. The defense similarly argued that the judge should’ve deferred this question to the executive branch as it is an issue of national security which could potentially outweigh issues of establishment.
The details of this case as an issue of establishment are related to the very controversial Texan case Van Orden v. Perry. This case concerns the display of the Ten Commandments on public property. Although the Ten Commandments are very different from a national security issue, the issue at hand is still what message the government is sending as it favors or disfavors certain religions over others. In Van Orden v. Perry, the majority opinion ruled that the Texas display of a Ten Commandments monument was not an issue of establishment, as they felt it served a secular, historical purpose to uphold morality in society. The dissent pointed out that the tablet gave special treatment to “One God” or more commonly known as the Judeo, Christian God and “at the very least, the text of the Ten Commandments impermissibly commands a preference for religion over irreligion”. I feel that the dissent’s argument applies to the watchlist case as even though the watchlist is not facially preferential to one religion over another, in reality, it discriminates over Muslims and puts them in a position as subject to extra scrutiny in their own country. Even if the display of the Ten Commandments and the want for security measures serves a secular purpose, that does not override a violation of the first amendment.
I agree with the court’s decision in this case because I believe the watchlist policy singles people out primarily on their religious identity which therefore means members of a particular religion are not being treated equally or neutrally to other religions. Although establishment issues are normally thought of preferential treatment of particular groups over others, they may also entail policies that disfavor particular groups. This case is clearly a disfavoring of members of the Islamic faith as the CAIR trial attorney described “the watchlist’s arbitrary criteria has long enabled the government to target Muslims based on their faith and then build a secretive network map of their associations”. We cannot help but view the watchlist’s discrimination, without distinct reasoning, of primarily Muslims as a “Muslim registry created in the wake of the widespread Islamophobia of the early 2000s”. Although many may argue that the inconvenience of the watchlist is justified as an issue of national security, I believe, that to disfavor certain groups over other citizens solely based on religious affiliation is an establishment of religion and violation of constitutional rights that cannot be justified in the name of security.
In September of 2019, the Council on American-Islamic Relations (CAIR) filed a lawsuit against the FBI on behalf of twenty-three Muslim Americans who were placed on the watchlist, but felt they were innocent of its accusations and had no reason to be on it. These Muslim Americans have been proven to not satisfy the definition of a known terrorist as none of them have been “convicted, charged or indicted for any criminal offense related to terrorism, or otherwise”. While on the watchlist, these citizens are detained, subject to multiple security screenings at airports and customs, and in some cases, even barred from flying certain airlines. People on the list report being profiled, handcuffed, and interrogated while trying to travel. Although the watchlist is a major tool utilized by the FBI for screening needs, we cannot ignore the issue of profiling and religious discrimination, as vast majority of people on the list are of Islamic faith.
The key issue brought forth in this case is if the watchlist violates the plaintiff's due process rights as they argued they “did not receive notice of why they were being put on the list or an opportunity to contest derogatory claims” therefore they feel they were not given fair treatment. Although this case mainly discusses due process, I will also consider if creating a watchlist that discriminates and stereotypes primarily one religion is an issue of establishment.
The court ruled in favor of CAIR because Judge Anthony J Trenga of the United States District Court for the Eastern District of Virginia argued that the standard for inclusion in the database was too vague, therefore, discrimination could easily occur without proper justification. Judge Trenga referenced similar controversial No Fly Lists to argue that the effect that the watchlist has on individuals burdens their rights to travel and increases their risk of being detained or questioned in front of family members. He claims that the watchlist can cause extensive harm to peoples “families, careers, and ability to travel”. Although the court ruled in favor of CAIR, it failed to say what should replace the watchlist as a security measure to “adequately protect a citizen’s constitutional rights while not unduly compromising public safety or national security”. The defense similarly argued that the judge should’ve deferred this question to the executive branch as it is an issue of national security which could potentially outweigh issues of establishment.
The details of this case as an issue of establishment are related to the very controversial Texan case Van Orden v. Perry. This case concerns the display of the Ten Commandments on public property. Although the Ten Commandments are very different from a national security issue, the issue at hand is still what message the government is sending as it favors or disfavors certain religions over others. In Van Orden v. Perry, the majority opinion ruled that the Texas display of a Ten Commandments monument was not an issue of establishment, as they felt it served a secular, historical purpose to uphold morality in society. The dissent pointed out that the tablet gave special treatment to “One God” or more commonly known as the Judeo, Christian God and “at the very least, the text of the Ten Commandments impermissibly commands a preference for religion over irreligion”. I feel that the dissent’s argument applies to the watchlist case as even though the watchlist is not facially preferential to one religion over another, in reality, it discriminates over Muslims and puts them in a position as subject to extra scrutiny in their own country. Even if the display of the Ten Commandments and the want for security measures serves a secular purpose, that does not override a violation of the first amendment.
I agree with the court’s decision in this case because I believe the watchlist policy singles people out primarily on their religious identity which therefore means members of a particular religion are not being treated equally or neutrally to other religions. Although establishment issues are normally thought of preferential treatment of particular groups over others, they may also entail policies that disfavor particular groups. This case is clearly a disfavoring of members of the Islamic faith as the CAIR trial attorney described “the watchlist’s arbitrary criteria has long enabled the government to target Muslims based on their faith and then build a secretive network map of their associations”. We cannot help but view the watchlist’s discrimination, without distinct reasoning, of primarily Muslims as a “Muslim registry created in the wake of the widespread Islamophobia of the early 2000s”. Although many may argue that the inconvenience of the watchlist is justified as an issue of national security, I believe, that to disfavor certain groups over other citizens solely based on religious affiliation is an establishment of religion and violation of constitutional rights that cannot be justified in the name of security.
I completely agree with Zoe and her stance on this case. I believe that while national security lists are created for the protection of the country, the people on the list should be actual threats that have met a certain criteria. People should not be solely on the list because of religious affiliation, this is discrimination and an establishment of religions that disfavors the Muslim faith. While this list will probably never cease to exist, new measures and regulations should be put in place to ensure that religious discrimination is not occurring.
ReplyDeleteI agree with Zoe's opinion and Jemmy's above comment. However, I would be interested to hear the opinion of someone who is in charge of making these "watchlists" to see if there actually is a legitimate criteria for adding people to the database. The article mentions "the opaque standards and rationales by which people’s names are added to such databases," but I wonder if those who create these databases would see differently. I wonder what specifically are the "current procedures" that the judge ruled to be "inadequate." As it stands, "agencies can nominate people for inclusion on the list based on intelligence that may never be shared with them." This is unacceptable. In these tense times, there needs to be transparent justification to include people's names on the list and for that reason I agree with the ruling. Without knowing the details of how the "watchlist" is constructed, it does appear on the outside to hold extra scrutiny against Muslims, which is unconstitutional. Unless somebody can prove otherwise, the racial bias against Muslims is evident.
ReplyDeleteI agree with Zoe's opinion on this case. The people on the list were supposed to be actual threats, which is why they were on the watchlist. However, the Muslims that were on the list did not have any previous actions that would have landed them on the list and did not meet the criteria to be on it. This was discrimination against them due to their religion.
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