No-Fly List Has Been Declared Unconstitutional, But That’s Only a Start

Janine Jackson: We don’t need the anniversary of September 11, 2001, to remind us of the devastating legacies of that day: the evidently endless wars, by whatever name, in Afghanistan and Iraq and elsewhere. And in the U.S., the wave of Islamophobia, not invented that day, of course, but elevated to organizing principle for law enforcement and policymakers and media — anti-Muslim bias repackaged as national security.

Now a pillar of that sanctioned discrimination appears to be weakened. A U.S. District Court judge ruled that the Terrorist Screening Database, usually referred to as the “watchlist,” and the list from which other lists, like the No Fly lists, were derived, that that was unconstitutional. “The general right of free movement is a long-recognized fundamental liberty,” said Judge Anthony Trenga. And the TSDB, or watchlist, violates that right.

It’s good news, for sure, but our next guest says it’s crucial that we understand it’s not a conclusion, but just a possible beginning. Maha Hilal is co-director of Justice for Muslims Collective, an organizer with Witness Against Torture and a councilmember of the School of the Americas Watch. She joins us now by phone from Arlington. Welcome back to CounterSpin, Maha Hilal.

Maha Hilal: Thank you, Janine; thank you for having me.

Let’s talk first about what the court did say here. The watchlist, first of all, if folks don’t remember, had some 1.2 million people on it as of 2017, about 4,600 of them U.S. citizens or Green Card–holders — not all Muslims, but disproportionately so. And the information is shared with some 18,000 state, local, federal officials, along with private entities and foreign governments. It’s been going on for 15 years now. Why did Judge Trenga determine that the watchlist was unconstitutional?

So, specifically, when the judge was looking and reviewing the case, he determined that there were two things that were unconstitutional in terms of the watchlist: 1) that those who are on the watchlist weren’t notified of their presence on the list, and 2) that there was no meaningful way to challenge their presence on the list.

And in his decision, he specifically said that the watchlist “does not provide to a United States citizen a constitutionally adequate remedy under the Due Process Clause.” So this was a pretty historic win for the Muslim-American community, particularly on an issue that has long plagued many Muslims who have been traveling, both domestically and abroad.

And it made it difficult, I understand, to bring cases, because they would say, “Well, you don’t have standing,” because you didn’t know you were on the list! There were a number of things that were impeding the pushback on this, right?

Right. And in the government’s response, they specifically said that there were numerous reasons why an individual could experience things like interrogation at the airport, [or] could be stopped at some other place. They were convinced that the Muslim Americans in this case were not necessarily on the watchlist, because they said that there are numerous other institutions that could be targeting these Muslims, that it wasn’t necessarily that they were on the watchlist that was the issue. And they weren’t obviously able to prove that, which was the other issue.

So, “widely shared yet secret and potentially very consequential,” I think were the terms. I think we can all agree to that. But your piece, recently, for Newsweek is headed, “Admitting the Terrorism Watchlist Was Unconstitutional Is Important, but Not Nearly Enough.” Why is that?

So when the plaintiffs talked about the ruling, and that Judge Trenga had declared it unconstitutional — at least insofar as, again, being placed on the list, and not being able to challenge your presence on the list — that was theoretically a good thing, and obviously, it does make some strides.

However, he hasn’t come to a conclusion in terms of what would be the remedies for the list going forward. He gave each plaintiff and the defendants 45 days to suggest remedies. And, obviously, the remedies that were proposed weren’t about ending the list altogether.

Arguably, that would be a difficult ask. But at the same time, the only ask that the plaintiffs made in their complaint was that individuals should be notified of being on the list, and that they should be able to challenge their place on the list. So that’s a pretty narrow request, in terms of what it would take to actually fundamentally change the watchlist, or get rid of it altogether.

The watchlist also — there seems to be a real division here, that is maybe made to seem more meaningful than it is, between citizens and non-citizens. What’s going on there?

Right. So, again, when the plaintiffs talked about the victory, of course, it was a victory for American citizens in particular, and some non-U.S. citizens living in the United States. But the number of American citizens and lawful permanent residents that are on the list is 4,600, and the entire list is approximately 1.2 million people. So even if this group of people acquires more rights, depending on what the judge decides, that’s quite a small percentage of the entire list.

And so, as I mentioned in my piece, it begs the question of, will this result in two separate watchlists? One where American citizens and non-U.S. citizens living in the U.S. have additional rights, and one where non-citizens — who typically don’t have any rights when it comes to this country and challenging their presence on lists or detention or other things — they will have a separate list, and won’t have any way whatsoever to meaningfully challenge their presence on the list?

Well the remedy, or the way to get to a remedy that is being called for, they’re saying, “put forward ideas for a system for watchlisting that would serve bona fide national security purposes but adequately safeguard individuals’ constitutional rights.”

There’s nothing in this that disrupts the frame, as you put it, that Muslims are guilty until proven innocent, that Muslims are inherently a threat to national security. It doesn’t really shake up that frame, does it?

No, not at all. And I was actually surprised that the plaintiffs represented this case as such a huge win, and talked about their next step being to end the watchlist, when the judge did not even speak about possibly dismantling the list or ending the list.

In fact, he just reiterated the fact that Muslim Americans, and Muslim non-citizens who are living in the U.S., have a certain set of rights that others don’t. And it really wasn’t clear from his reasoning either, and the statements he made in his decision, that the list, in and of itself, was a problem.

It wasn’t about the list being fundamentally flawed; it was about the way it’s being implemented, and said, “How do we reform the watchlist?” as opposed to “How do we get rid of it? Because it’s so problematic, that there’s no way we can reform it.”

Part of the issue is, when you’re working just through the legal system, you’re only going to be dealing with these specific plaintiffs and this specific case. And when we’re talking about anti-Muslim bias and action in this country, it’s — and you made this point the last time we had you on — it really goes beyond questions of legality and illegality; in a way, that whole legal frame is too narrow.

Right. I think there are the theoretical rights that Muslim Americans in particular are entitled to. And then there’s what happens when their rights are made to compete with the state. And it becomes clear, whenever that’s the case, when it’s a national security case, their rights have to compete with what’s in the theoretical interest of the state to fight terrorism. And when that’s the only way your rights can be measured, then inevitably, it becomes really difficult to actually win anything substantive, or gain any positive changes for your community.

And I think that this case, although it’s better than nothing, and is indicative of some success on behalf of the Muslim-American community, I definitely think that there has to be a lot more work done to challenge the assumptions and narratives that exist, to allow such policies to exist in the first place.

And for Muslim Americans in particular, I think it’s also really important when it comes to the terror watchlist or any other policies that really make a huge divide between citizen and non-citizen, that they are particularly strategic about not disenfranchising non-citizens even more, because that is already a problem. And non-citizens have faced many consequences in the “war on terror.” And so for Muslim Americans to be complicit in that, I think, is a huge issue. And unfortunately, it’s something that somewhat emerged in the way that the terror watchlist case ended up and the way that it was spoken about.

Yeah, we’re back into Good Muslim vs. Bad Muslim, which is, the sort of division we see….

Just, finally, the last time we spoke, you pointed out that the point of a lot of the ways that Muslims have been targeted is not just to target those specific individuals, it’s to send a message to the entire community that you too could be targeted, that you too will be surveilled, that you too will be profiled.

So the response to that has to be more than these narrow remediations in a sense, even if they are very powerful, there needs to be a positive pushback that uplifts the reality of who Muslims are and who that community really is, yeah?

Right. And I would say at the same time, it’s quite tiring for the burden to be placed on Muslims, to talk about who they are, and “we’re just like everyone else.”…

Yes, yes.

Because we are the group that’s being dehumanized, and it shouldn’t fall on the dehumanized group to push back against these problematic narratives. And I also think that in, sometimes, the way that Muslim Americans push back against Islamaphobic narratives, they’re actually really reinforcing and reiterating the stereotypes of Muslims in the first place. And we could talk about internalized Islamophobia; maybe that’s for another day, but I think that it’s really important.

And with decisions like this, when we talk about the terror watchlist, one of the plaintiffs talked about being vindicated because of what the ruling was, that it was unconstitutional, and that he was innocent.

And at this point in the “war on terror,” I take innocence and guilt, honestly, with a grain of salt. And I think that it’s really important to really deeply examine those concepts, because then it presupposes that people in places like Guantanamo are just inherently guilty, right? Like, we know that the label of “innocent” and “guilty” isn’t actually accurately applied, and that there are a lot of mechanisms that exist specifically to make someone guilty and to criminalize them.

Absolutely. Including just rewriting, changing the law as it existed.

No, I didn’t say, and wouldn’t say, that it is the responsibility of Muslim-Americans to do that pushback.

Right.

I think the responsibility is actually on others, including, from my perspective, the corporate media, who have beyond played into it and I think have been, in fact, a key force in getting those hateful ideas circulated.

Absolutely.

We’ve been speaking with Maha Hilal. She’s co-director of the Justice for Muslims Collective, as well as an organizer with Witness Against Torture and a council member of the School of the Americas Watch. You can find her piece, “Admitting the Terrorism Watchlist Was Unconstitutional Is Important, but Not Nearly Enough,” on Newsweek.com. Maha Hilal, thank you so much for joining us this week on CounterSpin.

Thank you, Janine.