Matt Ford writes:

The FBI’s Terrorist Screening Center was created in 2003 because, as a FAQ on its web site explains, “The 9/11 Commission report found that agencies did not share counterterrorism information in an effective and timely manner.” This is true—to a point. The executive summary of the report recommends the following: “Determine, with leadership from the President, guidelines for gathering and sharing information in the new security systems that are needed, guidelines that integrate safeguards for privacy and other essential liberties.”

The emphasis is mine. Today, there are an estimated 1.2 million people on the center’s Terrorist Screening Database (TSDB), including more than 4,600 Americans and green-card holders. These are people whom officials believe could support or commit terrorist acts. But if you’re in the database, you wouldn’t know it: The government refuses to identify who is on the list or why they were placed there. Many have argued that this is a violation of “essential liberties,” and a court finally agrees.

Earlier this week, a federal judge ruled that the process behind the secret federal watch list violated the Constitution. “The vagueness of the standard for inclusion in the TSDB, coupled with the lack of any meaningful restraint on what constitutes grounds for placement on the Watchlist, constitutes, in essence, the absence of any ascertainable standard for inclusion and exclusion, which is precisely what offends the Due Process Clause,” Judge Anthony Trenga wrote in his 32-page ruling.

It’s fitting that Trenga’s decision came the week prior to the eighteenth anniversary of the September 11, 2001 attacks, which led to the creation of so many constitutionally questionable practices, including the TSDB. While the threat of jihadist terrorism has largely receded in recent years, the consequences of U.S. policymakers’ response to it have not. Americans are still wrestling with—and in some cases suffering from—the policy fallout from 9/11. [Continue reading…]