Elhady v. Kable

• Decision Date: 04 September 2019
• Docket Number: Civil Action No. 1:16-cv-375 (AJT/JFA)
• Citation: 391 F.Supp.3d 562
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Anas ELHADY, et al., Plaintiffs, v. Charles H. KABLE, et al., Director of the Terrorist Screening Center, in his official capacity, Defendants.

391 F.Supp.3d 562

Anas ELHADY, et al., Plaintiffs,

v.Charles H. KABLE, et al., Director of the Terrorist Screening Center, in his official capacity, Defendants.

Civil Action No. 1:16-cv-375 (AJT/JFA)

United States District Court, E.D. Virginia, Alexandria Division.

Signed September 4, 2019

Gadeir Ibrahim Abbas, CAIR National Legal Defense Fund, Washington, DC, for Plaintiffs.

R. Joseph Sher, Lauren A. Wetzler, United States Attorney Office, Alexandria, VA, for Defendants.

MEMORANDUM OPINION AND ORDER

Anthony J. Trenga, United States District Judge

Plaintiffs are twenty-three United States citizens¹ who claim that because of their inclusion in the federal government's Terrorist Screening Database ("TSDB"), referred to colloquially as "the Watchlist," they have suffered a range of adverse consequences without a constitutionally adequate remedy.²

In Mohamed v. Holder , 2015 WL 4394958 (E.D. Va. July 16, 2015), the Court concluded that the Department of Homeland Security Traveler Redress Inquiry Program ("DHS TRIP"), as that process existed at the time, did not provide a constitutionally adequate remedy for a United States citizen who had been listed on the No Fly List, which is a subset of persons included in the TSDB who are prohibited from boarding a commercial aircraft that traverses U.S. airspace, and outlined what it considered to be the relevant considerations in assessing whether the subsequently revised DHS TRIP, which the Court concluded was not constitutionally deficient on its face, provided that constitutionally adequate remedy in its application to any particular case. See id. at *8-9, 12-13.

An individual's listing in the TSDB, without more, does not prevent them from boarding flights, but that listing is disseminated to and used by federal, state, and foreign government agencies and officials to support various diplomatic and security functions and does trigger a variety of other consequences, including restrictions on an individual's ability to travel. In this action, the Court now considers whether DHS TRIP, as it currently applies to a listing in the TSDB, provides to these United States citizen Plaintiffs a constitutionally adequate opportunity to challenge their presumed inclusion in the TSDB. As the Court acknowledged in Mohamed , this constitutional inquiry presents unsettled issues whose resolution is complicated by the criteria used to compile the TSDB, and "the classified information that, of necessity, is used to determine whether a person satisfies that criteria." Id. at *1.

Presently pending are the parties' cross-motions for summary judgment [Doc. Nos. 298 and 303] as to Plaintiffs' remaining claims: Count I of the Amended Complaint [Doc. No. 22], a Fifth Amendment procedural due process claim; and Count III, an Administrative Procedure Act ("APA") claim.³ Underlying both of these claims is Plaintiffs' contention that they were denied a meaningful opportunity to challenge their presumed placement on the TSDB. Specifically, Plaintiffs claim that they were not provided notice of their placement on the Watchlist, or a meaningful opportunity to refute any derogatory information that was used to place them on the Watchlist, and that as a result of these constitutional violations, they have been denied their liberty interests in (1) international travel, (2) interstate travel; and (3) being free from false governmental stigmatization as a terrorist. See generally , [Doc. No. 304]. Defendants contend that Plaintiffs cannot establish with sufficient certainty an impending future injury sufficient to support standing. They further contend that even if Plaintiffs can establish standing, their claimed injuries resulting from placement on the TSDB do not constitute a deprivation of a liberty interest protected by the Due Process Clause, and that in any event, DHS TRIP, the review process by which an individual may request a review of their presumed placement on the TSDB, is constitutionally adequate to protect any limited liberty interests Plaintiffs may have, particularly given the Government's interest in combatting terrorism. See generally , [Doc. No. 299].

For the reasons stated herein, Plaintiff's Motion for Summary Judgment is GRANTED and Defendants' Motion for Summary Judgment is DENIED. Briefly summarized, the Court concludes that (1) Plaintiffs have established that they have standing to raise their constitutional challenges; (2) Plaintiffs have constitutionally protected liberty interests that are implicated by their inclusion in the TSDB; and (3) the DHS TRIP process through which Plaintiffs may challenge their inclusion in the TSDB is not constitutionally adequate to protect those liberty interests.

I. Background

Unless otherwise noted, the following facts are undisputed:

A. The TSDB

The Terrorism Screening Center ("TSC") is an interagency operation within the Federal Bureau of Investigation ("FBI") that also involves the Department of Homeland Security ("DHS"), the National Counterterrorism Center ("NCTC"), the Transportation Security Administration ("TSA"), and United States Customs and Border Protection ("CBP"). See Pls.' Statement of Material Facts ¶¶ 1-2, 4; see also Defs.' Statement of Material Facts ¶¶ 3-7. The TSDB is a centralized collection of information about listed individuals, including biographic and biometric data, that is compiled and maintained by the TSC. The information contained in the TSDB, which is unclassified, is "updated continuously and disseminated around the country and world in real-time." Pls.' Statement of Material Facts ¶¶ 5, 7; Defs.' Statement of Material Facts ¶ 12. As of June 2017, approximately 1.2 million individuals, including approximately 4,600 United States citizens or lawful permanent residents, were included in the TSDB. Pls.' Statement of Material Facts ¶ 9; Pls.' MSJ Ex. 74 at ¶ 4.

An individual may be "nominated" to the TSDB by a federal government agency or foreign government. Pls.' Statement of Material Facts ¶ 8; Defs.' Statement of Material Facts ¶ 16. Nominated individuals are added to the TSDB if their nomination is based "upon articulable intelligence or information which, based on the totality of the circumstances and, taken together with rational inferences from those facts, creates a reasonable suspicion that the individual is engaged, has been engaged, or intends to engage, in conduct constituting, in preparation for, in aid or in furtherance of, or related to, terrorism and/or terrorist activities." Pls.' Statement of Material Facts ¶ 15; Defs.' Statement of Material Facts ¶ 13; Pls.' MSJ Ex. 62 at 4.

All nominations to the TSDB are reviewed by the TSC, which, in assessing whether an individual should be placed on the TSDB, must determine whether the United States Government has a "reasonable suspicion that the individual is a known or suspected terrorist." Pls.' Statement of Material Facts ¶ 12; Defs.' Statement of Material Facts ¶ 18; see also Pls.' MSJ Ex. 66 at 46-47. A "known terrorist" is defined as "an individual who has been (1) arrested, charged by information, or indicted for, or convicted of, a crime related to terrorism and/or terrorist activities by the United States Government or foreign government authorities; or (2) identified as a terrorist or member of a terrorist organization pursuant to statute, Executive Order or international legal obligations pursuant to a United Nations Security Council Resolution." Pls.' Statement of Material Facts ¶ 13. A "suspected terrorist" is "an individual who is reasonably suspected to be engaging in, has engaged in, or intends to engage in conduct constituting, in preparation for, in aid of, or related to terrorism and/or terrorist activities." Id. ¶ 14.

In determining whether to accept, reject, or modify a nomination, the TSC may consider, but may not solely base its decision on, an individual's race, ethnicity, religious affiliation, or "beliefs and activities protected by the First Amendment, such as freedom of speech, free exercise of religion, freedom of the press, freedom of peaceful assembly, and the freedom to petition the government for redress of stress of grievances." Pls.' Statement of Material Facts ¶¶ 17-18; Defs.' Statement of Material Facts ¶ 13; see also Pls.' MSJ Ex. 62 at 4. The TSC may also consider an individual's travel history, associates, business associations, international associations, financial transactions, and study of Arabic as information supporting a nomination to the TSDB. Pls.' Statement of Material Facts ¶ 19; see also Pls.' MSJ Ex. 40 at ¶ 20; Pls.' MSJ Ex. 50 at ¶ 9; Pls.' MSJ Ex. 25 at 340:17-341:13, 343:21-344:14. An individual's placement into the TSDB does not require any evidence that the person engaged in criminal activity, committed a crime, or will commit a crime in the future; and individuals who have been acquitted of a terrorism-related crime may still be listed in the TSDB. Pls.' Statement of Material Facts ¶ 20; see also Pls.' MSJ Ex. 25 at 323:6-9; Pls.' MSJ Ex. 28 at 254:5-255:8, 261:9-21, 276:13-18. The underlying information that supports an individual's inclusion in the TSDB is not included in the database. Pls.' Statement of Material Facts ¶ 7.

The TSC shares the TSDB with various "partners," including federal, state, and foreign government agencies and officials, who then use that information to support their screening, vetting, credentialing, diplomatic, military, intelligence, law enforcement, visa, immigration, and other security functions. Pls.' Statement of Material Facts ¶ 21; Pls.' MSJ Ex. 62 at 1-2, 5-6. These partners include CBP, which screens all individual travelers against the TSDB when they seek to enter the United States, id. ¶ 25; the Coast Guard, which, along with CBP, uses the TSDB to screen passenger and crew manifests for ships traveling through U.S. waters and seaports, id. ¶ 26; TSA, which screens air travelers against the TSDB and designates anyone on the list as "high-risk status," subjecting them to...