Blog Post

Federal Judge Declares FBI Terrorist Watch List Unconstitutional

Richard P. Kusserow | September 2019

Not to be confused with the OFAC terrorist watchlist

A federal judge from the U.S. Eastern District of Virginia recently issued a decision that the Federal Government’s Terrorist Screening Database (TSDB), commonly known as the “Watchlist,” does not provide a “constitutionally adequate” process for Americans in the database to challenge their status. The list contains over one million names, including approximately 4,600 U.S. citizens or residents. It is managed by the FBI’s Terrorist Screening Center, an interagency operation between the FBI, the Department of Homeland Security, the National Counterterrorism Center, the Transportation Security Agency, and Customs and Border Protection. The Watchlist has been the country’s central repository of foreign and domestic known and suspected terrorists. The plaintiffs include 23 U.S. citizens who were never formally notified of their placement on the Watchlist that have been subjected to prolonged border interrogations and regular electronic searches when flying. The FBI has noted that to be added to the Watchlist, a government agency must nominate a person that the agency has a “reasonable suspicion” to believe is engaged in or aiding terrorist activities. The judge ruled that the Watchlist violated the plaintiffs’ due process protection under the Fifth Amendment and violated their Administrative Procedure Act claim because those placed on the Watchlist were not notified of their placement on the list or given a meaningful opportunity to appeal their placement on the list. The list is distributed to federal and state government agencies as well as foreign governments to assist their screening processes.

It is important to note that the TSDB is not the same as the Specially Designated Nationals and Blocked Persons (SDN) list and all other sanctions lists administered by the Office of Foreign Asset Control (OFAC) maintained by the Department of the Treasury. Many healthcare entities screen against the OFAC listings, which is a list of individuals and companies owned or controlled by, or acting for or on behalf of, targeted countries. It also lists individuals, groups, and entities, such as terrorists and narcotics traffickers, designated under programs that are not country-specific.

About the Author

Richard P. Kusserow established Strategic Management Services, LLC, after retiring from being the DHHS Inspector General, and has assisted over 3,000 health care organizations and entities in developing, implementing and assessing compliance programs.

Subscribe to blog