Watching the Terror Watchlist

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Watchlisting people with known or suspected ties to terrorism has long been a key tool among U.S. counterterrorism and transportation security programs.  For just as long, a wide range of people – from U.S. citizens to foreign nationals with no legal status in the United States – have litigated their suspected presence on watchlists or no-fly lists, claiming that those lists, or aspects of their administration, violate various tenets of due process and other rights.  Last year, courts were particularly rough on the federal agencies charged with curating and using watchlists.  For the first time, a district court held the government’s procedures with respect to the FBI’s centralized Terrorist Screening Database (TSDB), violates procedural due process of a group of twenty-three U.S. citizen plaintiffs.  On the heels of that decision, the Supreme Court declined to review an en banc opinion by the Ninth Circuit suggesting that the government acted in bad faith with respect to the nearly 15-year long litigation concerning Malaysian national Rahinah Ibrahim’s one-time inclusion on the TSA’s no-fly list.

Join former DHS General Counsel Joe Whitley and Professor Tung Yin for a fascinating conversation on these cases and the current legal and policy landscapes concerning watchlists.  The discussion will be moderated by the former Senior Advisor for Legal Policy at the State Department’s Bureau of Counterterrorism, Adam Pearlman.

Featuring: 

Hon. Joe D. Whitley, Chair, Government Enforcement & Investigations Group, Baker Donelson Bearman Caldwell & Berkowitz, PC

Prof. Tung Yin, Professor of Law, Lewis & Clark Law School

Moderator: Adam R. Pearlman, Managing Director, Lexpat Global Services

 

This call is open to the public - please dial 888-752-3232 to access the call.

Event Transcript

[Music]

 

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Greg Walsh:  Welcome to The Federalist Society's teleforum conference call. This afternoon’s topic is titled “Watching the Terror Watchlist.” My name is Greg Walsh, and I’m Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today's call.

 

      Today we are fortunate to have with us the Honorable Joe D. Whitley, Chair of the Government Enforcement & Investigations Group at Baker Donelson Bearman Caldwell & Berkowitz, Professor Tung Yin, Professor of Law at the Lewis & Clark Law School, and our moderator, Mr. Adam R. Pearlman, the Managing Director at Lexpat Global Services. Thank you all for sharing with us today. Mr. Pearlman, the floor is yours.

 

Adam R. Pearlman:  Thank you, Greg. And to everyone on the call, we hope that you're safe and healthy. Good afternoon. Thanks for joining us for what I expect to be a very interesting conversation with two experts in national security law and homeland security as we discuss the legal and policy status of terrorist watchlists and their uses.

 

      To echo Greg, I should say right off the bat, too, that any views I express during the course of this call are my own and do not necessarily reflect the policy or position of any government agency or other organization I worked for or with over the course of my career. I imagine that goes for our other speakers as well.

 

      We will be talking today about the Terrorist Screening Database, or TSDB, which is to centralize U.S. government repository of sensitive but unclassified biographic and biometric information of known and suspected terrorists. Many different U.S. agencies receive extracts of this watchlist for their own screening and law enforcement uses. The most familiar are likely the Transportation Security Administration’s No Fly and Selectee list. But other lists help the Defense Department screen visitors to military installations, the State Department with visa and passport determinations, and the Customs and Border Protection in their border and port of entry screening operations.

 

      Nominations to the TSDB are done by an established process through intelligence and law enforcement channels and are vetted by the Terrorist Screening Center to ensure they meet both the reasonable suspicion standard for inclusion on the watchlist and that they have sufficient identifiers for a specific individual.

 

      Over the years of litigation, mostly concerning the No Fly list, multiple courts have weighed in on various aspects of the watchlisting process and the rights they implicate. The government has become more transparent about this system over the years in response to discovery orers and congressional inquiries. And the redress process by which people may challenge their suspected inclusion on a list has evolved in response to judicial opinion. But until last fall, no court had ever found the TSDB itself to be constitutionally infirm.

 

      That’s no longer the case as Judge Trenga of the Eastern District of Virginia found for a group of 23 U.S.-person plaintiffs claiming procedural due process violations regarding their alleged inclusions not merely on a specific list but in the underlying TSDB.

 

      In discussing theses issues we’re joined today by one of the preeminent practitioners of national security law as well as a distinguished scholar of constitutional law and counterterrorism.

 

      First, Joe Whitley is a Shareholder at Baker Donelson and chairs the Government, Enforcement & Investigations Group there. He served as the first general counsel of the U.S. Department of Homeland Security, supervising over 1,800 lawyers working in 22 agencies to keep Americans safe from further terror attacks or other disasters after 9/11. He previously served with distinction in several roles at the Department of Justice including as Principle Deputy Associate Attorney General and as the United States Attorney in two different districts, first in the Middle District in Georgia under President Reagan and then in the Northern District of Georgia under President George H. W. Bush.

 

      He remains very involved in security related matters, including by putting on the ABA’s annual Homeland Security Institute for the past 13 years. Two years ago Georgia’s Super Lawyers magazine lauded his “intellect, demeanor, and generosity with his time and mentorship” from which we will all benefit today.

 

      Now, second, Tung Yin brings a uniquely strong, practical, and professional pedigree to his legal scholarship. A graduate of Cal Tech, Professor Yin went on to earn a Master’s in Journalism before heading to law school at Berkley where he served as an editor of the California Law Review and graduated Order of the Coif.

 

      He clerked in federal courts at both the trial and appellate levels in the Central District of California before terms on both the Ninth and Tenth Circuit Courts of Appeal. After some years in private sector practice, he began teaching at the University of Iowa College of Law where he first earned tenure before moving onto his current tenured position at Lewis and Clark Law School. Incidentally, his most downloaded paper on SSRN analyzes the procedural due process issues with respect to terrorists.

 

      Now Joe and Tung will each take about ten minutes to give their views on where we are today on watchlisting as a counterterrorism tool and how we got here. I’ll then ask them a few questions each before opening the conversation to audience Q&A. And with that, Joe, you were there about as close to the beginning as one could be. Let’s start with you. Tell us about the watchlists.

 

Hon. Joe D. Whitley:  Adam, thank you so much for putting today’s program together. I want to thank The Federalist Society for providing a place for the thoughtful dialogue we’re going to have today on [inaudible 06:09] and legal and policy issues. I would mention that just like you anything I’m saying today will represent my own views on these issues. And as they say where one stands depends on where one sits. I’m no longer in government today so maybe my views are a little different. The homeland program you mentioned that I put on every year is coming up December 17th and 18th in Washington. So I hope it happens.

 

      I’m going to provide a brief summary today of HSPD-6 or Homeland Security Presidential Directive 6. I want to talk a little bit about the origins of the Terrorist Screening Database, or TSDB. I also want to touch on the Terrorist Screening Center and its operation. And I’ll discuss the watchlist itself, and then a word or two at the end about false positives.

 

      The historical context of the watchlist process really has its origins as you say, Adam, back in 2001. The whole nation was riveted after those events of that attack of so many iconic structures here in the United States and killed thousands of people. Those events of 9/11 really set things in motion that created a more robust watchlist process. A number of legislative changes to government included the creation of the Department of Homeland Security in 2002. Shortly after that, I joined the Department in March of 2003. I was on my way to get there for several weeks but it took a while to get through all of the clearances.

 

      Also early on, the 9/11 Commission was created which looked at what happened on 9/11 – how did it happen, why did it happen, that sort of thing. I always say that it was because of the 19 young men that decided they were going to attack America. It’s really kind of hard to look in the rearview mirror and appreciate that they were actually the cause of this catastrophe we experienced. But we did take a look. Can we do a better job of preventing and preempting terrorist threats? In fact, FBI Director Robert Mueller transformed the FBI along those lines: preemption. He turned it into the world’s leading antiterrorist law enforcement organization with a view to prevent and preempt terrorist attacks.

     

      DHS was a part of this process of putting all of these things together, and at DHS I worked closely with the 9/11 Commission and Secretary Ridge as they went through a number of recommendations. And as I was at Homeland, we tried to implement these recommendations. And in particular, the 9/11 Commission recommended the creation of a national counterterrorism center. They suggested that the adage quote “Need to know” should become “Need to share.” And some of the problems of 9/11, or some of the things that could’ve been different, really built around the lack of sharing of information. And so they recommended targeting terrorists’ travel. It was their thought that at least terrorists’ travel was at least as power as terorrists’ money. So if those two things could be impinged upon, it would make it easier to defend against the next act of terrorism. And they recommended the expansion of the No Fly list.

 

      And parallel to this, President Bush 43 issued Homeland Security Presidential Directive 6, which called on the Department of Homeland Security and others to develop, integrate, and maintain a data security system known as -- for suspected or known terrorists. The TSC was created, the Terrorist Screening Center was created by a memorandum of understanding between the FBI and DHS, and that was entered into while I was at Homeland Security.

 

      So the watchlist had its origins in the 9/11 Commission recommendations and HSPD 6. There is something called the No Fly list and that’s a subset of the watchlist. The terrorist watchlist is, as you said, a sensitive classified list managed by the Terrorist Screening Center. It’s an interagency operation located within the FBI that includes DHS, TSA, Customs and Border Protection, and many other agencies.

 

      In 2017 it contained the names of 1.2 million individuals and 4,600 U.S. citizens or lawful permanent residents. And those numbers assuredly are much greater today. Being placed on the Terrorist Screening Database or watchlist does not directly restrain a person’s individual movement. However, it certainly can if you're going to an airport and you're told you can’t board a plane. The FBI shares watchlist information with federal, state, local, and foreign government agencies to assist them in their screening processes.

 

      Individuals are added to the watchlist if the government agency has a “reasonable suspicion.” And this sound a little bit like what would be called a Terry stop, in other words is there an articulable suspicion that an individual is “a known or suspected terrorist.”

 

      There is a way to seek relief from being on the watchlist, and much of the litigation has been about that issue. There’s something called DHS TRIP, the Traveler’s Redress Inquiry Program, where individuals can submit a form to DHS TRIP online. The DHS TRIP operation will forward the traveler’s complaint to the Terrorist Screening Center Redress for further review. At the end of the review, DHS TRIP then sends a determination letter to the traveler indicating that DHS TRIP has completed its review. But it’s not so satisfying because it doesn’t provide any real details. In some cases the letter advises the recipient that he or she can pursue an administrative appeal and/or a judicial review. The determination letter does not provide information about the ability to take future travel.

 

      TSC, in all of this it remains a very critical part of the government’s counterterrorism early warning interdiction network. And, again, that sort of reflects what Bob Mueller did to the FBI. It’s much better to not have a crime scene and prevent a crime scene or prevent a terrorist act than having it carried out and then investigating it.

 

      TSC conducts case-specific quality assurance review of the data in TSDB, and that’s one of the issues that we’ll be talking about in the remainder of our program. However, such large numbers, as I mentioned earlier, 1.2 million individuals, raised the obvious question of whether the watchlist is overinclusive.

 

      As Adam mentioned, there are many uses for the data in the watchlist, and we are all supportive of those no matter which way we may sit -- where we may sit on the political spectrum. Certainly, we want more border security. We want passenger screening. We want to make sure that the employees that work for the federal government are not terrorists. We want people who own firearms not to be engaged in terrorist activity. All of those things are assisted by the data from this system.

 

      However, there are legitimate concerns about false positives and false negatives with the system. A number of solutions have been discussed, and we may talk about this more in the balance of the program. Should we tighten the criteria for inclusion? And I think that has been happening. Should we improve the decision-making process within TSC for review and removal of individuals who, perhaps, should not be on the terrorist watchlist?

 

      Adam, that’s a quick look at the watchlist, highlighting a few issues for you. Thank you very much.

 

Adam R. Pearlman:  Thanks, Joe. And that tees up a few questions from me. But I think first we’re going to kick it over to Tung and then we’ll have more of a fluid discussion. Tung, the case that I described in my intro remarks is a case by the name of Elhady, the principle plaintiff. Can you unpack for the audience the legal arguments made in that case and where we stand in the legal landscape with the TSDB and the watchlisting litigation that’s been happening over the years? Feel free, as it’s relevant, to include any other cases that you want, whether it’s Ibrahim or others. But I kick it over to you for the constitutional discussion.

 

Prof. Tung Yin:  Okay. And so first of all, thanks to Greg for hosting and to Adam for putting together the panel and inviting me, and to Joe as the co-speaker. I don’t work for -- I just work for universities, so I guess it probably doesn’t really matter, or need to be said, that these are my opinions. I think that typically goes with being a professor.

 

      So I’ll start off by talking about the Elhady case and then give some thoughts about that. One of the interesting things to note about this case is that it was filed in the Eastern District of Virginia, which I just point out because at the beginning of the War on Terror, the government loved the Eastern District of Virginia as a forum. So that’s why you saw cases like Hamdi v. Rumsfeld and John Walker Lindh’s case and others were all prosecuted in the Eastern District of Virginia because that was seen as the most favorable overall forum for the government: in the shadow of the Pentagon, all appeals went to the Fourth Circuit, which was at the time considered probably the most conservative circuit court in the country. That was almost 20 years ago and now we see that the Eastern District of the Virginia is where the plaintiffs chose to file their case. So it’s kind of an interesting reflection upon the change in composition of the courts.

 

      So the plaintiff in Elhady—there are 23 of them—and basically they all allege different variations of the following story: they, in attempting to travel, domestically and/or internationally, have found themselves subject to all kinds of restrictions. Not necessarily being put on the No Fly list, although some of them do allege that as well, but being subjected to secondary and tertiary screening, being pulled aside for as many as 10 hours for additional questioning and detention. And so their complaint is broader than simply not being allowed to fly. Perhaps they are allowed to fly, but only after being subjected to much much more screening and scrutiny.

     

      And then a few of them allege that they were even told by government agents, “Why are you still flying?” or “Why are you still traveling?” with the result that a few of them claim that they stopped traveling internationally for fear of additional screening procedures.

 

      So they raised a number of complaints, a number of legal claims. The trial court dismissed ones based on select prosecution, equal protection, and so forth, but allowed discovery to proceed on due process claims and Administrative Procedure Act claims. Following the end of discovery, both sides brought summary judgment motions. And the district court actually granted the plaintiffs’ summary judgment motion, which I would say is somewhat unusual. Typically, a successful summary judgment motion would be brought by the defense in the case. For the plaintiff to win the case, it would mean that basically not only is there no need for the trial but in fact it’s so obvious that the plaintiff should win because of the undisputed facts.

 

      So what the district court did is it essentially collapsed the APA and due process claims together, saying that essentially they were co-terminus in nature. So the plaintiffs had alleged, as part of their due process violation, that A) they should have gotten pre-deprivation notice—that is to say as soon as they were put on, or even before they were put on the TSDB, that they should have been notified, “We are going to put you on this. Perhaps you’d like to do something about it.” And secondly, having been put on the TSDB, that they should have been entitled to better post-deprivation process. In other words, that they should be able to challenge being put on the list and have more access to the evidence that was used to put them on the list and understand the reasoning and so forth.

 

      The government’s response to the summary judgment motion by the plaintiffs was three parts. One, that the plaintiffs did not present a justiciable claim, primarily that they lacked standing. Second, that even if it had standing, what they were alleging was not a cognizable injury. What they were simply complaining about, in the government’s view, was “You’re burdened a little bit by screening. You're saying you have the right not to be screened.” And then finally, the government’s third point was even if that is a burden, a cognizable injury, that the TRIP, the Traveler’s Redress Inquiry Program, is adequate process for the alleged violation.

 

      So Judge Trenga’s opinion, favoring the plaintiffs, concluded that one, the plaintiffs did have standing because they sufficiently alleged that they had suffered these deprivations as a result of being put on the TSDB. And if you read the opinion—and this part is, I think, essentially undisputed which is why the plaintiffs were able to get summary judgment motion—there are long, harrowing stories that most of the 23 plaintiffs are able to put together. Three of them are actually babies so a little bit unclear the nature of the standing afforded to those plaintiffs. But presumably, it goes along with parents. And I think it would be hard for the government to refute the individual case simply because who’s necessarily going to remember all of these details. So in a sense, the government is almost stuck with those allegations as they are made.

 

      So that part the court was able to dispense with the standing objection fairly easy. Next, in terms of the cognizable injury for the due process claim. Here the government, as I said, argued that the plaintiffs were saying it was a loss of the right to travel, but the government argued that it was simply incidental burdens. And the court agreed more with the plaintiffs that these burdens were so significant that it, in a couple of the cases, deterred plaintiffs from further travel. In the case of others, they were so significant that it caused them to continue to miss flights and so forth.

 

      So then moving on the court then concluded -- went to what is the risk of erroneous deprivation. That is to say this question of overinclusivity that Joe had mentioned. And here the court, I’ll just quote the court, that it viewed the TRIP as “a black box. Individuals are not told, even after filing, whether or not they were or remain on the TSDB watchlist and are not told the factual basis for their inclusion.” So in the court’s view the black box makes it too likely that there’s an erroneous deprivation.

 

      So then the final component of due process is, of course, the government’s interest. And the government’s interest is quite strong here in preventing additional terrorist attacks. So the court agreed that pre-deprivation notice would be too harmful to government interests. You could not tell people, “We’re watching you,” without having them then alter their behaviors, alert other people, and so forth. So the court disagreed that the plaintiffs were entitled to pre-deprivation notice. But post-deprivation notice, the court felt that the TRIP was inadequate. That, again, there was no notice at all about whether you're still on the TSDB, no notice about the criteria used, no notice about the evidence used.

 

      So then we get to the $64,000 question: plaintiffs win summary judgment. In their view, hooray. What do they get? And the court punted the remedy issue and said that the parties should file supplemental briefing about what the appropriate remedy is. Now this decision came down last fall. Obviously, there’s a lot going on in the world that’s kind of slowed things down, but we still have no indication at all what the remedy, if any, will be in this particular case.

 

      So here’s some quick thoughts about the opinion. One, on the standing claim, it’s clear the plaintiffs have alleged an injury. I think the more interesting justiciability question is whether it’s ripe because they're suing for injunctive relief, not damages for the past harms. And so for the injunctive relief, the claim to be ripe would have to be one where they really, at this point, are facing the same potential injury, not that it’s speculative in the future.

 

      So this is a little bit like City of L.A. v. Lyons which was a standing case about the LAPD chokehold. And in that case, the court actually held that getting injunctive relief was not ripe because the plaintiffs couldn’t show that he would be stopped by the police again and would be subject to a chokehold if stopped.

 

      So you could make the argument that this opinion maybe was reaching out a little bit, although in my view, it’s maybe different enough from Lyons in that being on the TSDB here is going to have continual future effects. So it’s not speculative on the happenstance of being stopped by the officer. It’s triggered by the decision to travel.

 

      A second thought about the risk of erroneous deprivation. So the court hinges this all on this black-box nature of TRIP. It’s not clear to me that the lack of transparency actually effects the accuracy of the determination. It’s a different problem of a sense, but you could imagine that TRIP can be completely accurate in its decision making and yet tell the person nothing more than “You’re complaint has been resolved.” Now, no can be unsatisfactory but it’s probably not, in that hypothetical, a risk of erroneous deprivation. So it seems to me that the description of the problem is maybe a little bit problematic on the part of the view of the court.

 

      Now it would matter in terms of the lack of transparency if there was some sort of appeals process or if the information that was being given to the plaintiffs came before the resolution; in other words they could decide how to argue that they're wrongly placed on the list.

 

      The third point is that the court’s view of the government’s interest seems to me -- it’s nuanced because, again, the court did recognize that the pre-deprivation notice was unwarranted. But it seems to me that it may underway government interests a bit in protecting sources and methods. The court really seems to be wanting people to know more about why they're on the list, which is understandable but at the same time, the government may be reluctant to do so in that it would give away how it is the government has learned these things, which may, despite being unclassified, in total, give away sources and methods.

 

      And so finally, I think we can wonder are courts the best form for resolving these sorts of claims? And here we can notice adversarial litigation takes a long time. The Ibrahim case that Adam mentioned is a similar kind of case about the No Fly list. But that one took over 15 years before the plaintiff finally got a resolution in her favor. And during all that time, she actually had been blocked from reentering the country, which she had immigrated to over 20 years earlier. So if we’re relying on courts, sometimes it might take way too long to get a resolution.

 

      Second, courts are made up of generalist judges, of course. Judges can become experts in anything over the weekend by reading briefings. But they may not be sensitive to government interests as a whole. Maybe something like the FISA court—although that has its own issues—would be better in terms of having judges with some developed expertise in issues who still would be Article III judges. Or maybe more robust administrative review would be a more appropriate avenue.

 

      And then the last thought is the policy question “Are watchlists desirable?” We’ve already heard mentioned about too many people on them. One of the issues here is the incentive to add people, not to subtract people. And that’s because the burden to the government of keeping someone on the list is minimal. It’s a little bit like the same issues with prosecutors in prisons. Prosecutors don’t have to worry about how much prison space is being used. They just keep prosecuting people. If they actually had to internalize the cost of prisons, then they would be more judicious about who to send and for how long.

 

      So maybe the better approach is to use the watchlist; that is test the people on it through stings or more investigations, and either prosecute them as terrorists or clear them but not keep them in this sort of limbo where they're just on the list. It causes burdens when they travel and so on. But otherwise, the government doesn’t proactively do anything about them.

 

      So I’ll stop there and turn it back to Adam.

 

Adam R. Pearlman:  Thanks, Tung. Well, thank you both for very insightful comments, both overviewing the fact and operational and origin issues on the ground and the interesting legal space in which we find ourselves.

 

      Joe, you had mentioned the shift in culture between “need to know” and moving to “need to share,” which I remember that keenly. And obviously there was a wrench thrown into that by Manning and Snowden and other massive leak and disclosures and trying to figure out how to rein in control of information again.

 

      But with watchlists, watchlists only work if they're distributed, if people have access to them; if the right agencies and frontline operators have access to them. The court in Elhady was obviously concerned about this. Judge Trenga spent a bit of time on noting that, well, state and local officials and even contractors have access to the information on the watchlists. But what’s the alternative to that? Don’t they have to be widely distributed to be effective, but nevertheless in a controlled setting with people who are trained on how to effectively use them?

 

Hon. Joe D. Whitley:  Well, that’s a lot there, Adam, on that discussion you just had before asking the question. I believe they need to be widely distributed. And I suppose in the distribution but going back to the kind of confidence of the people running the TSC and making sure they're doing everything they can to make sure the product that gets distributed has been thoroughly vetted and looked at and reviewed. I don't know that we could actually go out and pursue the individuals on the list because sometimes the information we have is strong but not enough to meet the beyond a reasonable doubt burden in litigation. So I do think everything sort of starts at the source, if you will, the information that’s put into the system.

 

      But I think what happens, too, if we try to impinge too much on this somewhat opaque system to rein it in so to speak and take away what is the exercise of discretion that agencies have to determine whether or not someone presents a threat or not, it’s a little bit -- it’s almost highly personal to the individual border agent that might be dealing with someone coming into the United States. And we do want them to operate to some extent on their own discretion. And when they look at this information, hopefully evaluate it in a way that’s fair and gives the benefit of the doubt to the individual who’s coming in. But I don't know that it’s good to give a haircut, if you will, to the number of agencies that are getting the information. I don't think that’s a solution. I really to think perhaps IG oversight of the TSC, perhaps quality control, those kinds of things I think would be useful.

 

      And who’s to say as to the individuals in the case just discussed by Tung that those individuals weren’t somehow involved in activity that necessitated their not being permitted to fly. I mean, I don't know the answer to that. I'm not suggesting that’s the case. But anyway, I do think the discretion issues is a top one, but I think the source is where we should make the improvements.

 

Adam R. Pearlman:  And that raised an interesting question that I want to pose to both of you because there’s -- I remember from the beginning of questions about watchlisting, and it’s accentuated in Ibrahim early on and talked a lot about then. But this question about false positives, a notion of false positives. I’d like to ask a definitional question to both of you on what you think of this: what constitutes a false positive in this context? Is it that somebody’s on the list who is not in fact involved in terrorist activity? Or is it somebody for whom there is not a reasonable suspicion through some oversight or additional analysis? If the reasonable suspicion actually is not there?

 

      When each of you would refer to a false positive, what definition would you be using? The in fact or the reasonable suspicion standard?

 

Hon. Joe D. Whitley:  Tung, do you want to put a rest to that, and I’ll. . .

 

Prof. Tung Yin:  Sure. So that’s a very interesting question. And I guess the lawyerly answer would be it depends. Earlier Joe had brought up -- no. Adam I think. One of you brought up Terry v. Ohio, and I actually had scribbled a note about this last night as well when I was preparing what I was going to say. And in that context, Terry I think is a very good foundational case for our discussion because Terry is, in fact, a case about preventative investigation, not investigation after the fact. And so in that instance, we might say that while reasonable suspicion is less than probable cause and probable itself is less than preponderance of the evidence. So even when the police have probable cause to arrest somebody, the standard necessarily contemplates that they're going to be wrong possibly more than half the time if they're just skating right at the edge of probable cause.

 

      But I don't think we consider those -- I mean, globally we might consider those false positives in the sense the person is factually innocent, or at least factually not guilty. But it’s not a false positive in the sense of that they could not have been arrested.

 

      And so reasonable suspicion is the same in that sense, that should Detective McFadden in Terry been allowed to go forward and do the stop-and-frisk. Well, as long as he had reasonable suspicion, yes. But the key is is that he’s actually going forward and doing something with this reasonable suspicion. He approached Terry and the others and found them suspicious, frisked them for officer safety, found a gun, and hence, elevated the reasonable suspicion to probable cause and was able to arrest them.

 

      The difference with the watchlist is for the most part nothing happens until the person shows up to try to get on a plane and maybe they're hassled and subjected to more screening or they're denied entry. Otherwise, it just sits around like a time bomb waiting for something to happen. And so I guess in the regular law enforcement context, a false positive would be when somebody is arrested without probable cause or somebody’s Terry stopped without reasonable suspicion. But because we don’t have the same resolution with the watchlist, I think the false positive maybe starts to tilt more towards not actually being a suspected terrorist.

 

Hon. Joe D. Whitley:  And I agree with that. I think not in fact is what we were concerned about, at least this is my recollection. Let’s say you had an -- there are numerous spellings of the name Mohammed. And let’s say also you have another common surname, Jones. I’m just making this up. This is not a real name. But I’m saying Mohammed Jones -- there could be 50 Mohammed Jones in the United States. I’m, again, surmising. That might be the case. And 49 of them are not the Mohammed Jones that is in the system. But it might be triggered by that similarity. The Latin phrase idem sonans is, I think, the expression you might say, the similar name phenomenon. And that, I think, is an issue, a sort of practical issue I wanted to mention before because to Tung’s point, I think it’s really something sitting there dormant until it actually is utilized. It could be utilized in a not-in-fact role or a circumstance with this misnomer or this name confusion.

 

Adam R. Pearlman:  In light of that, Joe, can you respond to Tung’s thoughts about the burden of keeping -- the burden to the government of keeping people on the list? Tung characterized it as minimal. Do you agree?

 

Hon. Joe D. Whitley:  Yeah, I think that -- I don't know. I'm kind of looking at -- I'm trying to put my law enforcement hat on again here, and I think the opaqueness is really important for the maintenance of the list. It’s not something that, as Judge Trenga suggested, no preview of it should happen. And I think state’s secret privilege is certainly -- you know, Judge -- maybe that’s a bit of a black box, but this is sort of a confidence level we want to -- we need to have in government, particularly with entry through our borders. There’s higher discretion there at the borders to not permit entry.

 

      But I think there’s -- I would hope there’s an interest -- I believe there is an interest, at least an articulated interest, by the government, by the FBI, by all the agencies that participate in the Terrorist Screening Center, and TSDB that there be better quality control. I think there’s a resource phenomenon in terms of analysts to go through those 1.2 million or more names. Adam, right not that’s just an impossibility for the agencies. But it seems to me there could be algorithms developed and other things that could reduce that list because I don't believe there are 1.2 million people in the world who are terrorists focusing their energies on the United States. At least I hope not.

 

Adam R. Pearlman:  I think that’s fair. I think we can all hope not. I guess, so Tung, any thoughts on what the legal remedy might be?

 

Prof. Tung Yin:  Uh, you know, --

 

Adam R. Pearlman:  -- Taking Judge Trenga’s opinion -- assuming Judge Trenga’s opinion stands, taking it as true, do you have any suggestions as to what the remedy might be? Or is it complicated enough that that explains why we’ve seen a five-month, six-month pause in this briefing cycle?

 

Prof. Tung Yin:  Yeah, I think that an analogy might be to the Jeffrey Epstein case and the crime victim rights violation that the judge found that the government had engaged in. And yet, the court in that case also put off the remedy for future briefing because it’s a really hard issue. Can you even undue guilty pleas, particularly a guilty plea to a different jurisdiction that was predicated on the sweetheart deal that he got from the feds? So I think this is a different issue, of course, but maybe a similar thing of whatever remedy you try to come up with actually is going to be fraught with all kinds of problems.

 

      You know, one thing that maybe is lurking in the background of all of this is that are judges -- or are courts becoming more skeptical of this particular administration and hence less willing to defer than they would have to previous occupants of the White House. I wonder, of course they won’t come out and say that, but I wonder if that’s part of what is going on, even though I think the TSDB really is being handled by the career people and not by -- certainly not by the President directly.

 

      I don't have any suggestions to what the remedy should be because I think to some extent, not having worked directly in the field and having access to the kind of classified information, I don't have a good grasp of how sensitive the sources and methods could be. My prediction, though, is that the courts probably will tilt more toward a judicial review model. I base that -- I’m looking at the Guantanamo litigation and how the courts there could’ve taken the view that well, you know, there’s outsider jurisdiction. We trust the government will be conscientious. But instead they took a very aggressive judicial review position of reviewing the status of the Guantanamo detainees over the number of years of litigation.

 

      So --

 

Adam R. Pearlman:  -- After the Supreme Court told them to.

 

Prof. Tung Yin:  Yes. Right. So that would lead me to think that ultimately you may end up having more court review of this, even as that will sort of invite more and more lawsuits. I don't know if it would flood the courts, but it will get more of their dockets taken up by these cases.

 

Adam R. Pearlman:  Well, then what does that do to your calculus at the burden of keeping people on the watchlist as minimal?

 

Prof. Tung Yin:  Well, then that would start too -- that would depend on, I guess, the ratio of people who are able to bring lawsuits that don’t get kicked at a very early stage. Are there -- I can’t imagine it’s going to be a very fruitful avenue for lawyers, particularly the Ibrahim case where there’s a lot of fighting even over the amount of attorney’s fees that were entitled.

 

      So unless you have a lot of pro bono lawyers out there willing to take on these cases, you may have many potential plaintiffs but not many willing lawyers. So I don't know. It could cut the other way, though. That’s a good point.

 

Hon. Joe D. Whitley:  Yeah, I would say I don't -- I hear what you're -- I think Tung is correct about public perceptions. However, I do think the reality is in my mind that the career professionals -- and, again, I know that’s probably not the current view of career professionals. There’s a lot of concern about well, what’s the integrity -- certainly every agency has some integrity challenges. But I’ve a lot of confidence in the new director of the FBI—I mean, I’ve known him for many years—and also the people that are there at the Bureau to do a good job with this.

 

      And in large part this comes back to I’m no longer sitting in government so I guess I shouldn’t be having this position; I should be highly critical of government. But I'm not. I just think we have to look at the cost-benefit analysis. And, again, I know that’s a now a legal proposition, but since 9/11—and, again, whenever someone says this, the next day we could have an event—but since 9/11 we haven’t had another act of terrorism on U.S. soil of that magnitude from international terrorist groups. And I think in no small part it’s because of the watchlist process.

 

      It’s just I think Judge Trenga ran into the wall trying to adjust something as a court that might better be addressed through the intelligence committees in both House and Senate, together with the administration, no matter which administration, about trying to find some ways to improve this. I don't think litigating these cases in federal court is a good approach. I really don’t. I don't think -- I think the litigation costs are just extreme to the agencies. And I do believe that there could be a way to make more de minimis the number of situations like what occurred in Ibrahim, which occurred, I believe, in over several administrations, right Professor Tung? I think it was not something that happened during -- I think it happened over the Bush and then Obama administrations.     And, again, those kind of situations shouldn’t happen, but there is a cost benefit here that we have to think about.

 

Adam R. Pearlman:  I think we’ve got several thought-provoking comments here on a really multi-faceted issue. It’s a great way to open up to audience Q&A. Greg, if you could do the honors for us.

 

Greg Walsh:  Absolutely. Let’s go to audience questions.

 

James Gagel:  Good afternoon. My name’s James Gagel. I’m an immigration attorney here in Miami. This is a great conference. I really appreciate it.

 

      I’m just concerned more on the issue of the quality of the input of the information, not so much on the use of it. We have three situations that we call reason to believe where a visa could be denied, and that’s in the area of terrorism, drug trafficking, and money laundering. And reason to believe is the equivalent of probable cause. And we seldom know who makes that decision. Most of the time we’re dealing with consulate officers who are not attorneys, and they're looking at information that someone else somewhere else put into the system. As long as there’s some mention of any of those three words—visa and residences and so on—they get denied and people are prevented from entering the United States. And we’re never able to determine the factual basis for anything.

 

      So obviously it’s very important to know who’s making the decision in the first place to determine, just as a judge would determine, that there is in fact probable cause to believe that that person is involved in that activity. So any comments on the quality of the input or the screening in terms of how the information gets into the system in the first place would be great to know a bit more about.

 

Prof. Tung Yin:  Well, Joe, I’ll take the first swing and then you can follow up. So that is an interesting and a very serious problem. But I think part of the difficulty in having, essentially, what would be the pre-deprivation notice and response is that this tip comes in. And if we think of it in law enforcement situation, the regular Fourth Amendment, police get tips, and generally, the tips are not themselves enough for probable cause. But the police go and corroborate enough of the tip in the totality of the circumstances, than it can rise to probable cause.

 

      So there we can see that in the regular law enforcement context, there’s an obligation on the police that they're going to do something about a tip, to do investigative work. But if we apply that in this context, the very -- the TSC would basically have to be going out and investigating all manners of what would be the equivalent of tips. And I think that’s just simply infeasible.

 

      The next best approach might be, again, in the post-deprivation process. So if you're representing one of your clients and you get this notice of reason to believe, what is it that -- how might the system be reformed to allow you a greater opportunity to demonstrate that, in fact, there is no reason to believe, or that that is inaccurate, without giving away sources and methods. And can be -- to admit this, candidly to be shifting the burden on you to disprove as opposed to the government to prove, given the nature of the circumstances.

 

      Of course, in part in the regular law enforcement, the police are actually seeking to take away somebody’s liberty, and in the immigration context, Congress has all the plenary power. So it’s a different context. But still, I think you as the advocate probably should have a system where you can basically put some evidence, “Look, here’s my client. My client is upstanding, law abiding, that has a legitimate job. Here’s the source of income. No money laundering here. No drug dealing. No hidden money, etc.”

 

Hon. Joe D. Whitley:  James, I like the answer Tung gave you. I agree. I think there should be a kind of more open -- I think there should be some review of the quality of the information coming in. How that’s accomplished when you have so many names in the system, and I'm assuming a large quantity of those names are not actionable. But when they become actionable in a situation where your client is involved, I appreciate -- putting this back on the agencies. It is their way for them to, and there are two different types of cases in broad swath. I’ll say cases with merit and cases without merit. And maybe there’s a way to get those cases without merit resolved quicker through the TRIP process.

      But it’s unsatisfying, and I can hear that in your question. I don't have a good answer, but I do think, at least I have a case for there being more analysis on the entry and make sure the quality of the data in the system is better. And then on the other end of the system where there is a challenge that there be a way to move more quickly in responding. It’s just -- again, I think we don’t know the exact metrics on what’s going in on the inside of TSC exactly. But my guess is it’s resource driven and in many instances what they can and cannot get to effectively.

 

Greg Walsh:  Okay, let’s go to the next question.

Deb Mavrick (sp):  Hi, my name is Deb Mavrick, and I'm an immigration attorney also. The problem I have with all these watchlists, it is very difficult to get any information from the government. I have seen in litigation in federal court that you couldn’t get anything from the government. You have first exhaust the administrative procedures, and then the government or the agencies do not respond. Then you go to federal court under the Administrative Procedure Act and try a mandamus action. It takes forever to resolve these cases. I mean, my longest case took over 12 years to be resolved. So there must be a way where the government, at least, were to respond to a complaint or if you file for a review or an appeal to get any response and not the government just sitting on it.

 

Hon. Joe D. Whitley:  I hear what you're saying in terms of movement. You know, as we’re having this conversation, we’re all struggling to think of remedies to deal with the Judge Trenga’s such case. What are the remedies that might be imposed? I don't think it’s a good thing for courts to start ordering agencies to do things that don’t work for them. But I keep thinking, and maybe there is such an entity within the TSC world, but some sort of ombudsman process -- and that person could be overwhelmed. But it seems to me that might be one way of getting at trying to shorten the process.

 

      As a lawyer in private practice, of course, I would like to -- my dream is to have clients with lots of problems and also lots of money to pay me. But as a practical matter, this situation is one that effects lots of regular ordinary people that you deal with in your immigration practice. So I guess I hear what you're saying. Twelve years is an impossible length of time to deal with something. However, right now the current system really, as Judge Trenga discovered, doesn’t have good answers perhaps for people that are in your shoes. But I’ll turn it to Tung now for maybe a better response than the one I tried to give you.

 

Prof. Tung Yin:  Well, so I guess there’re a number of issues, but it seems like there’s the timing issue—“Why does it take so long?”—and then there’s the information issue. How do you find out why your client is in the TSDB if that’s what the case is? And I don't know. While listening to Joe, I was wondering the reform -- I think Joe is right. That it’s much better to put this in the hands of Congress, particularly the intelligence committees which have, presumably, much more experience and access to information relevant to these issues to formulate and reform TRIP.

 

      But I wonder if on the timing issue you might be able to model something after the Freedom of Information Act, which deals with similar issues of claims on the government for information and so on. So some kind of model where you get an inquiry, the government has to respond within X amount of time. And then, of course, there are the four exceptions which may apply in some instances. But that might be the beginning of some sort of model to reform TRIP.

 

Hon. Joe D. Whitley:  Yeah, and I --

 

Adam R. Pearlman:  -- It’s an interesting model, indeed, with the caveat of, of course, there’s FOIA litigation that also lasts for decades.

 

Hon. Joe D. Whitley:  Yeah.

 

Adam R. Pearlman:  But we’ve mentioned sources and methods in protecting information a few times on this call, but Joe, I was wondering if you might be able to better unpack exactly the rationale, so that people better understand what the reasoning is behind keeping the very profoundly dissatisfying and uninformative TRIP letter, and not giving out this information. How exactly are, or could sources and methods be implemented -- or implicated, rather, by giving out this information?

 

Hon. Joe D. Whitley:  Right. I will use an art metaphor, which is the mosaic theory, which applies in many cases. Which is the information -- if you think of a mosaic being pieces of tile put together to create an image, the sharing of one piece of information from that mosaic may very well share what the individual who’s seeking this information a full picture of what’s going on. The sharing of an email address, or something of that nature, that is relevant to a case could very well tip off individuals in other countries who are trying to commit crimes here in the United States through cyberterrorism. So it is a highly revered process with state secrets.

 

      The Department of Justice looks at these issues and weighs and balances these things so that when this happens, the Attorney General will usually file a memorandum, indicating that the state secrets privilege prevents them from sharing more additional information. And it is -- the sources giving up sources could very well result in someone being injured or killed, limiting the information that we get about what’s going on in other countries around the world and our methods where we’re using -- what kind of ways were we obtaining this information? Were we doing it through overhears, surveillance? And just overall, the sources, methods, and means approach is what we’re talking about. I think it is a highly valid concern that keeps, again, the United States in a much better, more protected position if we’re not giving that up. After all, every government in the world is trying their best to find out as much information as they can—and I’m exaggerating somewhat—about what we’re doing in our own classified world. But that’s a little bit of my thoughts on it.

 

Greg Walsh:  Okay, I think we have time for one more question.

 

Tommy Waller:  Tommy Waller with the Center for Security Policy. A quick question, I just want to understand the definition of terrorism, how that might effect a government’s ability to determine the merit of placing somebody on the watchlist. And I’ll just mention, for example, the most recent literature coming out of the NCTC points to violent extremism. The first responder’s toolkit, the most recent one, defined that as a complex and global phenomenon which is not limited to a particular ideology.

 

      When we back up to the 9/11 Commission, that report stated, “The enemy is not just terrorism, some generic evil. This vagueness blurs the strategy, the catastrophic threat at this moment, the history is more specific. It is a threat imposed by Islamic terrorism, especially the al-Qaeda network, its affiliates and ideology.”

 

      So I guess in such a resource-constrained environment, I wonder if it would make sense for government agencies to become more deeply familiar with that ideology, with Sharia, in order to better understand the types of beliefs and behaviors that would merit someone being placed on the watchlist. I’m curious of y’all’s thoughts on that.

 

Hon. Joe D. Whitley:  This is Joe. I will try to answer that. It’s a very complex question in some ways. I guess the promoting of balance against the United States for political and ideological reasons is something that might fit into the category of terrorism generically. And you suggested a further refinement, which is -- and I think a good one -- which is appreciation of -- it could be Christian fanaticism or Muslim fanaticism or whatever, an aspect of the religion that promotes violence against another country or individuals or human beings, being more -- agents becoming more literate about those different aspects. And I think they are highly literate today so I don't know that that’s necessary. But, again, I have been out of government for a while now, but I saw an incredible trend line, a learning curve, to appreciate the nuances of different faiths, in particular the Muslim faith and the aspects of sex and groups who promote violence within that faith, and the vast majority who don’t. And I think that’s understood better in law enforcement today than it was 20 years ago.

 

Prof. Tung Yin:  The only thing I have to add is that the question of “What is terrorism?” I think actually is a very deep one that the federal statutes are a little bit conflicting on. There’s few different definitions of terrorism that you’ll see scattered throughout the United States Code. But in general I think more appreciation of, especially of academic research about terrorism, probably would be helpful because a lot of the lay opinions about terrorism turn out not to be borne out by the research. I think there’s maybe a common sense that terrorists must be insane. But the research has generally found that terrorists are no more -- or no less sane than average people. There’s a belief that terrorism is bred by poverty. But, again, if you look at the 9/11 attackers, the muscle attackers on the planes were generally not well educated and came from poor backgrounds. But the pilots and the architects of the plan all had considerable amounts of education and came from middle class or upper class families.

 

      So in that sense, I think if we have people who are trying to figure out who should be put on the watchlist because of suspected terrorism, some understanding of what really terrorism is and who is drawn to it and why I think would definitely at least be -- at least a marginal improvement, if not a significant one.

 

Adam R. Pearlman:  And I’ll chime in and just say Tommy, it sounds like you would be well aware that, as Tung mentioned, there’s no single unified definition of what constitutes terrorism in either federal statute or regulation. And as Joe knows very well, I think, that is not for lack of trying, historically. But what appears in the Criminal Code won’t necessarily mirror up with what constitutes a standard for designating or sanctioning individuals. And the immigration standards are different.

 

      It is a very complicated and layered question that traditionally, I think, people thought a lot about terrorism and who might make the watchlist as people who might want to bring down a plane or blow up a building or something. Well, nowadays would a cyberterrorist -- would a suspected cyberterrorist make it onto the list? Would there be other forms of terrorism or violent extremist that would qualify for the list? And what legal rights might that implicate?

 

      And getting to the question of the inputs that was asked previously, what do we do in terms of recognizing what other countries would consider to be terrorist threats. There might be countries who would use the term terrorism more loosely than ours. We’ve all seen that to be true. And it’s not that particular problem. It’s not one that’s limited to terrorism. We see it with abuses in the Interpol process also. If a kleptocratic regime, for example, puts out an Interpol Red Notice against political activists, or something, would another country have to honor it just because that designation, that administrative action in a foreign jurisdiction has been taken?

 

      So there’s a lot of domestic legal questions. There’s a lot of international, treaty based questions. And I know this is thoroughly unsatisfying and a non-answer, but it was a great question. And similarly to what are the potential remedies for the TSDB if Judge Trenga’s opinion stands. I think we, too, are going to have to punt on giving you specific guidance for moving forward for how to handle that particular question.

 

      I think we’ve had a very intriguing, just-over-an-hour worth of conversation on this. There are many, many, many other hours that could be had on this topic and on these issues, but it is a Friday afternoon and all good things must end. So with that we thank everybody for calling in. I especially thank Joe and Tung for their willingness to participate and their thoughtful comments. I thank Greg for hosting, and I’ll kick that back to him to close us out.

 

Greg Walsh:  Thank you, Adam. On behalf of The Federalist Society, I want to thank our experts for the benefit of their valuable time and expertise today. We welcome listener feedback by email at info@fedsoc.org. Thank you all for joining us. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.