National Security

Federal Government Has Shared Watchlist Info with 1,400 Private Groups

Due Process Concerns Abound

|The Volokh Conspiracy |

A number of lawsuits have challenged (largely Muslim) individuals' inclusion on the governmental no-fly list and other watchlists. My coauthor Cassandra Robertson and I have written before about the significant due process problems with these lists, which are rooted in the secrecy surrounding why a person ends up on such a list and the great difficulties in getting oneself removed. All that is needed to be placed in the Terrorism Screening Database and on a watchlist is "reasonable suspicion" on the part of the government (a primer on how this occurs is here).

While the problems and legal challenges began before the Trump presidency, an ongoing lawsuit by twenty-five persons on such lists is Elhady v. Piehota, which involves the Trump administration's first assertion of the state secrets privilege in this context. The complaint in the case is available here, and the district court's ruling on the government's motion to dismiss is here.

After initial attempts not to disclose this fact, the government has now acknowledged that it has shared watchlist information with 1,400 private entities. While the plaintiffs are still seeking to obtain more insights into which entities received that information and how it is being used, organizations such as hospitals and universities appear to be included.

As many suspected, being placed on a watchlist thus has even more far-reaching implications than affecting one's dealings with the government or travel situations; it could play a role in medical treatment, university admissions, or employability. Right now, we simply don't know which organizations and areas are affected, but the risk of widespread stigmatizing effects on innocent people will hopefully increase the courts' willingness to impose restrictions on the government's overly broad ability to add individuals to watchlists and to share the lists with private parties.

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  1. Yes, and for these exact reasons, congressional Democrats should stop pushing “No fly no buy” gun restrictions.

  2. Which objection is dominant? Being placed on the list without notice or a clear process for getting off it, or the list being shared with the public?

    1. They reinforce each other.

    2. Except that the list isn’t being shared with the public. It’s being shared with cronies.

      1. 1400 groups of cronies? Even Trump’s circle isn’t that big.

  3. And what administration was it that shared the list with those 1400 organizations, pray tell? Prof. Manta can’t bring herself ever to say anything bad about O—-a, can she? The whole Conspiracy has become just one vast miasma of Trump Derangement Syndrome, with very little intellectual content. (I mean, come on, what interesting legal ideas are explored in this post? It’s just a reprint of a widely distributed newspaper article, for goodness’ sake, with a little extra anti-Trump vituperation added to the original.)

    1. You think Bush II was pure and Obama started the evil?

      1. No, I despise all politicians, including George Bush (moron fratboy). You’ll have a hard time finding a comment from me saying anything good about any politician.

        1. If everything you see is negative, the problem might be internal.

          1. I learned our government must be strong
            It’s always right and never wrong
            Its leaders are the finest men
            And we elect them again and again

            And that’s what I learned in school

            1. You’re missing a rather wide swath of land between always right and always evil.

              1. Well, call me when Prof. Manta (or you) finds something good that Trump has done.

                1. That’s easy stuff. Again, not the cartoon many of you take me for.

                  I found some genius in Trump’s Korean video about how awesome and epic his bromance with Un was going to be.

                  I don’t like how he treats our allies, but Trump’s been pretty good about not invading anyone thusfar.
                  In a similarly ‘could be worse vein’ he complains, but he’s kept his mitts off the Fed.

                  By all accounts, Perry has been doing great at DoE.

                  His science push is pretty decent across the board (global warming excepted, natch), and he’s doing good stuff with NASA.

                2. “Well, call me when Prof. Manta (or you) finds something good that Trump has done.”

                  Trump would have to do something to do something good. If he ever gets around to accomplishing anything, I’m open. The guy thinks he can half-ass his way through being President, which is fine as long as he’s satisfied getting two scoops of ice cream while everyone else gets one. It’s going to be… interesting… when he loses the job, if he isn’t too senile to notice when it happens.

    2. ” The whole Conspiracy has become just one vast miasma of Trump Derangement Syndrome, with very little intellectual content.”

      Trump Derangement Syndrome comes in more than one flavor, and you’re deep in one of them.

      “OMG, they said something bad about my guy! The nerve of these bums! They’re obsessed with him!”

      1. This issue isn’t TDS but rather general concern of freedom and rights and government tracking. Of course it is a concern when government has a secret no fly list and rules for it, but at least it is covered by an acknowledgement that there is some terrorist risk in flying.

        This is much bigger, though, with warrantless tracking (apparently) of people on the no fly list, doing many other things like visiting a hospital, or a hotel (?) Thus putting the lie to “It is about terrorists blowing up planes.”

        So government did something for one reason, then took the half step that, you know, it’s terrorists and about the tracking, not the flying.

        This is not, btw, caring about terrorists. It is caring that tools of a dictatorship never get built. A good citizen must watch power grabs out of bounds to what was originally stated.

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