The Terrorism Screening Center (TSC) is a multi-agency center created in 2003 in the wake of 9/11 terror attacks on the Twin Towers in New York City. The TSC is administered by the Federal Bureau of Investigation which is part of the U.S. Department of Justice.
The TSC, however, is operated by staff from multiple agencies beyond the FBI, including the Department of Homeland Security (DHS), the Department of State, Customs and Border Protection, and the Transportation Security Administration (TSA). All these agencies have various watch lists that identify either suspected or known terrorists who are in this country or who may be trying to enter the country.
The FBI’s Terrorist Screening Database (TSBD) is the government’s primary terror watch list. The TSBD contains about one million records, of which only about 5,000 are Americans.
No Fly List and Selectee List
The TSBD maintains two primary lists to monitor air travel in, out, and around this country: the “No-Fly List” and the “Selectee List.” The No-Fly List has about 81,000 names on it, of which about 1,000 are Americans while the Selectee List has about 28,000 names on it, of which about 1,700 are Americans.
The difference between the two is this: The No-Fly List prevents “known or suspected terrorists” from boarding commercial flights inside the U.S. or on those bound for the U.S. while persons on the Selectee List are not barred from air travel but are subjected to more intense pre-flight screening.
Selectees File Lawsuits
Nassar Beydoun and Maan Bazzi, both of whom are U.S. citizens, are on the Selectee List.
Beydoun, a Dearborn, Michigan resident, is subjected to what he describes as “excessive delays, secondary screening, being singled out at check points, and being singled out for additional screening at the gate” each time he attempts to board a flight.
Bazzi is only allowed to board flights after being subjected to the same treatment as Beydoun, but to a greater degree. On one trip from Brazil to Texas, Bazzi said he “was subjected to extra screening for approximately 10 minutes after receiving a boarding pass and was told to wait as [he] was going to be the last person boarded on the flight.” Upon arriving in Texas, Bazzi said he was searched for explosive and forced to undergo an additional hour of interrogation. In yet another flight incident, Bazzi had his passport was “confiscated” at the Las Vegas airport and he was subjected to an additional thirty minutes of screening.
Because of the stress and embarrassment associated with the Selectee List extra screening, both men filed complaints in October 2014 against the U.S. Attorney General, the FBI Director, and the TSC Director alleging due process violations and other unlawful agency actions.
In October 2016, the U.S. District Court in the Eastern District of Michigan dismissed both complaints. Both men appealed to the Sixth Circuit Court of Appeals. That Court, on September 12, 2017, in Beydoun v. Sessions, upheld the district court’s dismissal.
Freedom to Travel is Basic Constitutional Right
The appeals court began its analysis with an observation made by the Supreme Court in 1972 that the “freedom to travel has long been recognized as a basic right under the Constitution.” In fact, as long ago as 1958, the nation’s high court has held that “the right to travel” is an inherent part of the constitutional guarantee of “liberty” that cannot be deprived “without due process of law under the Fifth Amendment.” While the right to travel inside the U.S. is virtually unfettered, the Supreme Court in 1978 said, the “freedom to travel abroad [however] is subject to reasonable governmental regulation.”
Constitutional rights are not always as clear cut as they appear. For example, Sixth Circuit pointed out that the Supreme Court itself has qualified all constitutional rights with this caveat: “A fundamental right will only be implicated by government action that, at a minimum, ‘significantly interferes with the exercise of a fundamental right.’”
Put simply, Beydoun and Bazzi have a constitutional right to travel. But the question before the appeals court was whether the “government action” (their placement on the Selectee List and all the harassment/embarrassment that entails) significantly interfered with their right to travel.
Harassment, Delays, Embarrassment Not Enough to Implicate Rights
The federal district court ruled that the treatment the two men received when trying to board flights did not “rise to such a level as to implicate a constitutional right” and, therefore, they had failed to state a cause of action.
The Sixth Circuit upheld that legal reasoning.
The appeals court said the treatment the two men were subjected to was so “incidental or negligible” that it did not “implicate the right to travel.” In other words, inherent in the right to travel lies the government’s prerogative to subject the traveler to whatever treatment it deems appropriate to prevent even the potentiality of terrorism, as long as it does not significantly interfere with travel.
Delay at Airport Does Not Violate Right to Travel
The appeals court justified this unseemly conclusion by saying the two men had pointed “to no authority supporting their claim that a delay of ten minutes, thirty minutes, or even an hour at the airport violates their fundamental right to travel, and we are aware of none.”
The Sixth Circuit topped off this conclusion with the absurd observation that the treatment the two men received in the pre-flight boarding process was nothing more than a “minor disturbance” that neither interfered with nor deterred their right to travel.
U.S. citizens do not know how, or why, they find themselves on government watch lists. Ethnicity, race, religious beliefs, the spelling of one’s name, and/or country of origin could be sufficient for the government to believe that one citizen poses a risk or threat greater than another. And while courts may have the intellect to identify constitutional rights, they do not always have the courage to enforce them. The freedom to travel for those U.S. citizens—some 1700 of them—on the Selectee List has been compromised by governmental action, most of which is done in secret and based on classified intelligence and process, and unchecked by the courts. The government has refused to acknowledge whether the men are on the list, using governmental double speak of “neither confirming or denying.”
And the horizon that President Trump has presented to America, with all its shapes of racism and bigotry and authoritarianism, if left unchecked and unchallenged, will ultimately render the constitution itself useless.