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Admitting the Terrorism Watchlist Was Unconstitutional is Important, But Not Nearly Enough

We must acknowledge the totality of the U.S.' collateral damage, from those subject to extra scrutiny at airports to those being bombed in their home countries for nothing more than adhering to Islam.

 Even though the having the infamous Watchlist declared unconstitutional can be seen as a significant win for the Muslim American community, the remedy requested by the Plaintiffs is narrow and is unlikely to affect the many other policies that target Muslims. (Photo: Getty)

Even though the having the infamous Watchlist declared unconstitutional can be seen as a significant win for the Muslim American community, the remedy requested by the Plaintiffs is narrow and is unlikely to affect the many other policies that target Muslims. (Photo: Getty)

In Wednesday, September 4th, Judge Anthony Trenga of the U.S District Court for the Eastern District of Virginia ruled that the Terrorist Screening Database —colloquially referred to as the "Watchlist"—was unconstitutional. The case was brought forward by the Council on American Islamic Relations on behalf of 23 Muslim American plaintiffs.

In his decision, Judge Trenga—a Bush appointee—held that the Watchlist was a violation of the due process clause of the Constitution and of the Administrative Procedures Act. He reasoned that the procedures currently available to those on the Watchlist did not provide notice concerning whether a person has been added to or remains on the Watchlist, what criteria is used in adding individuals to the Watchlist, or an opportunity to rebut the evidence upon which the government relied in making that determination. Consequently, he held that the Watchlist "does not provide to a United States citizen a constitutionally adequate remedy under the Due Process Clause."

But even though the having the infamous Watchlist declared unconstitutional can be seen as a significant win for the Muslim American community, the remedy requested by the Plaintiffs is narrow and is unlikely to affect the many other policies that target Muslims. And without addressing the context in which the Watchlist exists, this decision risks the ultimate creation of what could amount to two Watchlists for two classes of people. One for U.S. citizens, including notice, the opportunity to rebut one's listing, and whatever other procedures the court deems appropriate; and a second Watchlist that is not bound to any of those procedural requirements for all non-U.S. citizens, who, at any given point in time are not on U.S. soil.

Further, the ruling gives no indication that Judge Trenga believes the foundation of the Watchlist is problematic. Consider a question in his ruling asking what "kind of remedy can be fashioned to adequately protect a citizen's constitutional rights while not unduly compromising public safety or national security." As with other national security policies that have been challenged, this statement seems to be rooted in the idea that the Judge views the Watchlist, to some extent, as a legitimate counter-terrorism intervention and one that might be refined and reformed.

Even as we hail this important but limited victory, it's important to capitalize on its momentum and work to disrupt the entire apparatus of the War on Terror.

After more than 15 years of the the Watchlist was established, the ruling underscores a key premise of the War on Terror: Muslims are seen as guilty until proven innocent. Perhaps unsurprisingly, the same trope—that placing Muslims under suspicion somehow makes American more secure—is stressed in the government's response, in which they state that "plaintiffs request this relief on the basis of very little evidence, and in the face of compelling Government declarations showing that such additional procedures could not be implemented without considerable risk to national security." As in other War on Terror policies, the actual rights of Muslims—both citizens and non-citizens—are not seen as a given but are positioned to compete head to head with the state's theoretical right to fight terrorism in the way it deems fit.

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Important though it is, the ruling affects only American citizens and non-citizens living on US soil. The numbers are also quite small as American citizens, comprise (with lawful permanent residents) a mere 4,600 out of a list of 1.16 million people. This victory underscores the premise that non-citizens who do not live in the United States are not entitled any practicable rights in the War on Terror. This is important because non-citizens living abroad have been targeted en masse not just through the Watchlist, but through U.S. militarism in Muslim-majority countries that have left over a million dead.

This ruling also has the potential of being misrepresented to the public as an indication of America's renewed commitment to rule of law and constitutional protections, remedying the excesses of the war on terror - when in fact it leaves this excesses largely untouched..

Even as we hail this important but limited victory, it's important to capitalize on its momentum and work to disrupt the entire apparatus of the War on Terror. We need to disrupt and subvert dominant narratives of Muslim criminality that allow policies like the Watchlist to be initiated in the first place, while discarding those attempts at counter-narratives that adhere to unsophisticated representations of the good versus bad Muslim dichotomy.

The premise of collective responsibility must be categorically rejected—especially so long as the U.S. continues to pride itself on the notion of innocent until proven guilty. Lastly, we must acknowledge the totality of the U.S.' collateral damage, from those subject to extra scrutiny at airports to those being bombed in their home countries for nothing more than adhering to Islam. And for those of us who identify as Muslim Americans, we must embrace and uplift the humanity and rights of Muslim non-citizens, lest we be complicit in their oppression.

Maha Hilal

Maha Hilal

Maha Hilal has a PhD in Justice, Law, and Society from American University in Washington, DC and the focus of her research and expertise is institutionalized Islamophobia in the War on Terror and it's impact on Muslims and Muslim Americans.  Dr. Hilal is currently the Co-Director of Justice for Muslims Collective, an organizer with Witness Against Torture, and a Council member of School of the Americas Watch.

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