Why Elhady v. Kable is a Gamechanger for the Counterterrorism Playbook
By Victoria Tinker
Earlier this year on September 4th, the U.S. District Court for the Eastern District of Virginia issued a long-awaited decision in Elhady v. Kable. The plaintiffs consisted of twenty-three United States citizens who argued that their inclusion in the Terrorist Screening Center’s Terrorist Screening Database (TSDB) without a way to challenge their status was a violation of their constitutional right of free travel, guaranteed by the Fourteenth Amendment.
Federal Judge Anthony Trenga granted the plaintiffs’ motion for summary judgement and held that the lack of remedy for citizens to challenge their status or know why they were included in the database was a violation of the Fifth Amendment’s Procedural Due Process Clause.
The twenty-three plaintiffs that brought the suit against the Terrorist Screening Center are U.S. citizens who have never been officially notified of their inclusion in the TSDB, but have experienced consequences that are likely connected to the TSDB. Some plaintiffs were barred from boarding flights, and others were subjected to intense screening methods like electronics searches and prolonged detainment that rendered aviation travel impossible. In 2015, the named Plaintiff, Anas Elhady, was returning to the United States from Canada and was handcuffed, detained, and interrogated for several hours. This is just one example of the many stops and interrogations that all of the plaintiffs experienced after the TSDB was created.
So, what is the TSDB? The TSDB is a database that is managed by the FBI’s Terrorist Screening Center (TSC). The TSC was established in 2003 by Homeland Security Presidential Directive-6 (HSPD-6) to facilitate the centralization of information acquired by different agencies and departments on known security threats.
Being listed on the TSDB does not prevent affected individuals from boarding a flight; however, the information is distributed to state, federal, and foreign governments, which can trigger the restrictions on an individual’s ability to travel. While the criteria used to determine whether an individual should be included on the TSDB is still unclear, the Court’s opinion in Elhady v. Kable actually provides the public with the most detailed look into how the TSDB operates.
To be placed on the TSDB, the TSC needs reasonable suspicion that an individual poses a risk based on factors such as: “travel history, associates, business associations, international associations, financial transactions, and the study of Arabic.” However, criminal activity, both terrorism-related and other, is not considered for an individual’s TSDB status. In the Court’s opinion, it was revealed that in 2017, 1.2 million people, including 4,600 U.S. citizens and lawful permanent residents, were on the TSDB.
If an individual believed they were wrongfully included on the TSDB, the only option was to file a complaint through the Department of Homeland Security (DHS) Traveler Redress Inquiry Program (TRIP). Elhady and the other plaintiffs had not filed the inquiry, but for good reason. In Mohamed v. Holder, the Court held that the DHS TRIP did not provide a constitutionally adequate remedy for a U.S. citizen who was listed on the No-Fly List.
The government’s argument in Elhady hinged on the fact that the plaintiffs did not suffer consequences due to their inclusion on the TSDB and were not deprived of a constitutional right. However, the Court found that because the plaintiffs’ right to travel, as afforded by the Privileges and Immunities Clause of the Fourteenth Amendment, was hindered by their inclusion on the database and faced severe scrutiny while traveling, the plaintiffs suffered a legitimate constitutional injury. Due to their treatment at airports, the plaintiffs had to refrain from exercising their constitutional right to free travel.
The Court did acknowledge the government’s legitimate interest in the security of U.S. borders from terrorist threats, but the deprivation of liberty that the Plaintiffs suffered overcame that interest. The right to travel freely is a long-supported fundamental liberty and individuals who are deprived of this liberty requires a constitutionally adequate resolution.
There is no doubt that resources like the TSDB serve an important purpose in the security and intelligence community. After years of information isolation between the security and intelligence agencies, the efforts to work together have proven to be fruitful in a time when national security is a primary concern. However, changes to protect constitutional rights are necessary. This decision follows the game-changing precedent from Latiff v. Holder that signifies a shift in how courts balance security and privacy interests.
Judge Trenga did not issue a decision on what remedy the plaintiffs are entitled to, and requested supplemental briefings from both the plaintiffs and defendants. In his ruling, Judge Trenga acknowledged that the government’s security interest has more weight than an individual’s right to travel when it comes to “pre-deprivation notification.” The government’s ultimate goal of combatting terrorism would be at risk if individuals were alerted of their status before trying to travel. Given the clandestine and fast-paced nature of terrorism, keeping the watchlists secret helps the security and intelligence community to maintain the upper hand.
The primary impetus for this ruling was that the Plaintiffs had no way to challenge their status on the watchlist; therefore, post-deprivation is where the real change will have to take place. The government will need to develop a neutral body for assessing claims of wrongful inclusion on the TSDB to satisfy the Constitution and ensure that individuals on the watchlist have the opportunity to be heard.
And so the remedies argument for Elhady v. Kable ensues in the Eastern District of Virginia–this battle is definitely one to watch.