While Wednesday’s ruling is significant, Trenga set up a bigger battle in the weeks ahead. The judge ordered both sides of the case to come up with arguments for what should happen next following his decision and those arguments could influence the fate of the database and the federal government’s process.
Trenga found the watchlist deprived the citizens of due process, which is guaranteed by the Constitution.
“The general right of free movement is a long recognized, fundamental liberty,” Trenga wrote. The government decision-making “is a black box — individuals are not told, even after filing, whether or not they were or remain on the (terrorism) watchlist and are also not told the factual basis for their inclusion. Accordingly, the Court concludes that the risk of erroneous deprivation of Plaintiff’s travel-related and reputational liberty interests is high, and the currently existing procedural safeguards are not sufficient to address that risk.”
Trenga stopped short of telling the federal government what to do next. Instead, he asked both sides to argue what should happen next over the next two months.
The citizens who brought the suit had asked for the judge to order their removal from any government lists that prevented them from flying or crossing the border into the US, which Trenga didn’t do.
The 23 people had claimed they should have been given notice to dispute being placed on the list.
The watchlist is not the same list as the No-Fly List.
According to the opinion, As of June 2017, 1.2 million people — including 4,600 US citizens or residents — were on the US watchlist. Names on the list are drawn from a variety of domestic and foreign sources. This includes, per the FBI
, “federal, state, local, territorial and tribal law enforcement; intelligence community members; and international partners.”
Addressing the “reputation interests” that come with being on the list, Trenga wrote that “a person has certain rights with respect to governmental defamation.”
“Here, Plaintiff’s reputational interests implicated by their inclusion in the TSDB (Terrorist Screening Database) are substantial because of the extent to which TSDB information is disseminated, both in terms of the numbers of entities who have access to it and the wide range of purposes for which those entities use the information, including purposes far removed from border security or the screening of air travelers,” he wrote.
Transportation Security Administration Acting Deputy Administrator Patricia Cogswell said Thursday the agency will review the impact of the ruling “to understand the details of the judge’s order, what the judge expressed concerns about, and then determine a path forward.”
She added: “As you know, this is not the first time the watch list has been reviewed by courts. This ruling is a bit different from the other rulings so we will be looking to understand how this judge’s ruling interacts with others.”
The Justice Department and FBI declined to comment on the ruling.
This story has been updated.