Legal Challenges to the Terrorist Screening Database

Legal Challenges to the Terrorist Screening Database

Legal Sidebari

Legal Challenges to the Terrorist
Screening Database
July 20, 2023
“On September 11, 2001, agents of the al Qaeda terrorist organization hijacked commercial airplanes and
attacked the World Trade Center in New York City and the national headquarters of the Department of
Defense in Arlington, Virginia. . . . Nearly 3,000 civilians were killed,” the Supreme Court observed.
In its report on the terrorist attacks and recommendations for how to prevent future attacks, the National
Commission on Terrorist Attacks Upon the United States (9/11 Commission) found that relevant
executive agencies failed to effectively and efficiently share relevant counterterrorism information,
including information on individuals known to be or reasonably suspected of being involved in terrorist
activities. The 9/11 Commission advised that the prevention of future attacks would be furthered by
pooling and disseminating such information across agencies, both in the high-level operational planning
phase and during the points at which government agents may interact with individuals in the field—for
example, at the border, in an airport, or during a traffic stop. Since the 9/11 attacks, the Terrorist
Screening Database (TSDB), a sensitive but unclassified database consisting of biographical or biometric
information on known or suspected terrorists, has become a significant tool for information sharing in this
regard. While the federal government has sought to deploy the TSDB in a manner that protects privacy
and civil liberties, a number of individuals have raised legal challenges to the TSDB on various
constitutional and statutory grounds.
This Sidebar summarizes the development of the TSDB (which the government has referred to by other
names over time, and for simplicity will be discussed here as the “TSDB”), the legal authority for the
government’s creation and use of the TSDB, the variety of legal challenges to the TSDB, and how federal
courts have adjudicated these claims. The Sidebar concludes with considerations for Congress.
Overview of the Terrorist Screening Database
A Failure in Information Sharing
The 9/11 Commission investigated the terrorist attacks of September 11, 2001, and sought to identify
ways to prevent future attacks from occurring. Among other things, the 9/11 Commission determined that
agencies shared counterterrorism information on a limited basis, thus hampering strategic analysis and
operational planning. The 9/11 Commission also found that “the U.S. government did not find a way of
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pooling intelligence and using it to guide the planning and assignment of responsibilities for joint
operations involving entities as disparate as the CIA, the FBI, the State Department, the military, and the
agencies involved in homeland security.”
A Unified Information Sharing Approach
The 9/11 Commission proposed a unified approach to information sharing that generally would promote
the sharing of counterterrorism information, focus preventative efforts on screening in real-time, and
safeguard privacy and civil liberties.
Consistent with the recommendations of the 9/11 Commission’s report, the federal government undertook
efforts to ensure that counterterrorism information was appropriately gathered and shared. On September
16, 2003, President George W. Bush issued a directive, Homeland Security Presidential Directive 6
(HSPD-6), to executive agencies to maintain “information about individuals known or appropriately
suspected to be or [that] have been engaged in” terrorist activities. The directive also required the
Attorney General to establish an organization that would “consolidate” the federal government’s terrorist
screening approach and provide for the “lawful use” of relevant information in screening processes.
Following the directive, the Attorney General and heads of other executive agencies announced the
creation of the Terrorist Screening Center (TSC)—to be administered by the FBI—that would integrate
the multiple existing watchlists and ensure that agencies and officials would have access to relevant
information from these watchlists. The consolidated watchlist became the TSDB. One subset of the TSDB
is the “No-Fly List,” which contains the “names of individuals who are to be denied transport on
commercial flights because they are deemed a threat to civil aviation.”
Another of the 9/11 Commission’s proposals was the establishment of a National Counterterrorism Center
(NCTC). After the publication of the 9/11 Commission’s report, the President issued an Executive Order
creating the NCTC to “maintain[] the authoritative database of known and suspected terrorists, share[]
information, and conduct[] strategic operational planning.”
The Terrorist Screening Database Process
Additions. An individual may be added to the TSDB if there is “reasonable suspicion” that the individual
is a known or suspected terrorist. “Reasonable suspicion” is an individualized, articulable determination
that, based on the totality of the circumstances and with reasonable inferences drawn therefrom, “an
individual is known or suspected to be or have been knowingly engaged in conduct constituting, in
preparation for, in aid of, or related to terrorism or terrorist activities.” Only government agencies may
nominate an individual for inclusion in the TSDB. An individual’s TSDB record must include some
biographical (e.g., name or date of birth) or biometric (e.g., photographs or fingerprints) information.
Vetting. The NCTC vets a TSDB nomination and, if satisfied that the criteria have been met, enters the
record into its own database, called the Terrorist Identities Datamart Environment (TIDE), and passes
along the nomination to the TSC. The nomination is independently vetted by the TSC and, if it is satisfied
that the criteria have been met, the record is added to (or modified or deleted in) the TSDB. As of
February 2016, around 1.6 million individuals, including approximately 16,000 American citizens and
lawful permanent residents, were included in at least TIDE.
Reviews. TSDB records are periodically reviewed by nominating agencies and the TSC to ensure that the
criteria for inclusion continue to be met.
Access. The TSC shares information with “agencies and officials authorized or required to conduct
terrorist screening, to include diplomatic, military, intelligence, law enforcement, immigration,
transportation security, visa, and protective screening processes.” In addition to federal agencies, TSC
also shares information with state, local, tribal, and foreign governments, owners/operators of critical

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infrastructure, and private entities with a substantial bearing on homeland security. TSC shares
information through multiple processes, such as fusion centers, task forces, or digital platforms.
Removal. The process to remove a record is similar to the process for an addition: a removal request
(prepared by an FBI case agent) is submitted to the NCTC for review and, upon completion of review, is
forwarded from the NCTC to the TSC for final processing. A traveler with an issue or complaint that may
be TSDB related—such as inclusion on the No-Fly List resulting in additional airport screening, delays,
or denial of travel—may contact the DHS Traveler Redress Inquiry Program (TRIP) for information or
potential relief.
Legal Issues Concerning the Terrorist Screening Database
Legal Authorities for the TSDB
The President’s authority to issue the directive establishing and maintaining the TSDB seems to be
grounded in the Constitution and statutes. The directive itself was part of the government’s response to
the terrorist attacks of 9/11 and subsequent hostilities. Article II of the Constitution identifies the
President as the Commander-in-Chief of the armed forces. This authority includes the ability to respond
to warlike conditions or a state of war, such as the terrorist attacks by a group that declared war on the
United States. This constitutional authority to respond to warlike situations need not be predicated on a
congressional declaration of war. Beyond war-related powers, Article II of the Constitution assigns to the
President the general responsibility to “take care that the laws be faithfully executed.” This duty
encompasses the Executive’s authority to enforce criminal laws, for example, through the prosecution of
criminal law violations, and also the prevention of the violation of criminal laws, including laws related to
terrorist activity. Article II also vests the President with general administrative control over the executive
department and with the power to address common issues with foreign actors. This authority would
appear to encompass TSDB information sharing among agencies and with foreign entities, as well as with
state and local governments, though the latter may raise unique federalism considerations.
In addition to constitutional authority, the directive establishing the TSDB is supported by post-9/11
statutes. In 2001, Congress enacted the Authorization of Use of Military Force, Pub. L. No. 107-40, which
mandated that the President respond to the 9/11 terrorist attacks and “prevent any future acts of
international terrorism against the United States” by those behind the 9/11 attacks. More specific to the
TSDB, Congress enacted the Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-
458, which required the President to “create an information sharing environment for the sharing
of terrorism information.”
Primary Legal Challenges to the TSDB
Plaintiffs have brought a variety of constitutional and statutory challenges to the TSDB. As to
constitutional claims, three plaintiffs asserted that they refused to serve as federal government informants
that would gather information on the Muslim community and were placed on the No-Fly List in
retaliation for their refusal, in violation of their rights under the First Amendment, among other things.
Similarly, two other plaintiffs alleged that they were included on the No-Fly List and precluded from
participating in a religious pilgrimage, known as the Hajj, in violation of their religious rights.
Plaintiffs also have asserted that their inclusion in the TSDB resulted in violations of the Fourth
Amendment right to be free from unreasonable searches and seizures. For example, a plaintiff claimed
that he was detained, following a routine traffic stop, for an hour-and-a-half because the officers
determined that he was on the No-Fly List. Another plaintiff asserted that, because he was included in the
TSDB, he routinely had his laptop or cell phone seized when traveling back into the United States.

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Another constitutional basis for challenges to the TSDB has been the Fifth Amendment’s Due Process
Clause, which (1) requires the government to provide certain procedural protections when seeking to
deprive a person of a constitutionally protected liberty interest; and (2) protects certain fundamental
constitutional rights from government interference. In one due process case, plaintiffs claimed that the
reasonable suspicion threshold for inclusion in the TSDB was too low as a constitutional matter; that they
were not given notice of, or the reasons for, their inclusion in the TSDB; that they were not afforded an
opportunity to contest the basis for their inclusion; that they were erroneously placed in the TSDB; and
that the absence of judicial involvement in the inclusion phase impermissibly risked such erroneous
inclusion. In another case, a plaintiff contended that the criteria used for inclusion on the No-Fly List
were unconstitutionally vague. Plaintiffs have also alleged that they have been denied various, related
liberty interests protected by the Due Process Clause, including the right to travel by specifically enduring
constant secondary screening in airports, experiencing delays and inconveniences in travel, and curtailing
further travel. On account of being hindered in their travels, Plaintiffs have claimed that they have lost
business or job opportunities and have been unable to visit family. They further alleged that they have
suffered stigmatizing and reputational harm (in the travelers’ and others’ sense) in being included in the
TSDB. Finally, plaintiffs have claimed that they have been added to the TSDB because of their
background or profession in violation of their fundamental rights or of the constitutional guarantees
against invidious discrimination among similarly situated individuals.
Beyond constitutional claims, plaintiffs also have brought TSDB-related suits based on federal statutes.
For example, plaintiffs have alleged that the TSDB inclusion process is arbitrary and capricious in
violation of the Administrative Procedure Act (APA). One plaintiff sought relevant watchlist records
under the Freedom of Information Act (FOIA) and the Privacy Act. Plaintiffs included in the TSDB have
also claimed that they are entitled to relief under the Religious Freedom Restoration Act, which
establishes religious rights beyond those protections afforded by the Constitution by creating a heightened
standard of review for government actions that substantially burden a person’s exercise of religion.
Limited Success of Legal Challenges to the TSDB
With limited exceptions, described below, courts have rejected constitutional and statutory challenges to
the TSDB. For example, several federal appeals courts, including the Fourth, Fifth, Sixth, Ninth, and
Tenth Circuits, have concluded that various plaintiffs—who asserted violations of their rights under the
Fourth Amendment, the Fifth Amendment, and the APA—were not entitled to relief. In addition, the
Ninth Circuit determined that, for national security reasons, Twitter did not have a First Amendment right
to disclose certain information regarding the government’s requests for information on Twitter users that
ostensibly would be used for terrorist screening purposes. Beyond circuit court rulings, federal district
courts also have recently dismissed constitutional and statutory claims pertaining to the TSDB (see, for
example, here, here, here, here, here, and here).
Despite the above decisions, some plaintiffs have had a limited amount of success in TSDB-related legal
challenges. In 2014, for instance, one district court determined that the TRIP process for redressing the
erroneous placements of individuals on the No-Fly List deprived the plaintiffs—several citizens and
lawful permanent residents of the United States—of their constitutional right to procedural due process
under the Fifth Amendment. The court determined that the TRIP process contained a high risk of
erroneously depriving the plaintiffs of their constitutionally protected interests in their reputations and in
air travel because of the low evidentiary threshold for inclusion in TSDB coupled with the government’s
failure to disclose inclusion on the No-Fly List and the reasons for inclusion. Overall, the court viewed
the TRIP procedures as fundamentally deficient for these reasons, holding that they left the plaintiffs
without “proper notice and an opportunity to be heard.” In light of the district court’s decision, the
government revised TRIP procedures such that, among other things, complainants on the No-Fly List

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would be explicitly advised of their inclusion on the list and, upon request, provided with information
regarding “the specific criterion under which the complainant has been included on the list.”
A different federal district court ruled in 2014 that the government violated the plaintiff’s right to
procedural due process when an FBI Special Agent mistakenly added her to the No-Fly List after
misreading the instructions on the relevant form. As a remedy, the court ordered that all references to the
mistaken designation be stricken from all databases, among other things. Additionally, in 2022, a federal
district court held that U.S. Customs and Border Protection did not adequately respond to the plaintiffs’
FOIA request regarding the policies and practices of agents at ports of entry and an assessment of the
efficacy of these counterterrorism efforts. The court ordered the agency to produce all non-exempt and
segregable information pertinent to the request.
Several TSDB-related cases are also pending as of this writing. For example, the Ninth Circuit ruled in
2022 that an FBI agent’s declaration that the plaintiff had been removed from the No-Fly List was
insufficient to moot a case filed by a plaintiff who claimed that his inclusion on that list violated his
constitutional rights. A federal district court also ruled in late 2022 that a plaintiff’s Fourth Amendment
claim could proceed where, as indicated previously, the plaintiff alleged that he was detained for well
over an hour after a routine traffic stop. The government’s appeal remains pending. In May 2023, another
federal district court transferred a plaintiff’s No-Fly List claims to the federal appeals court, which under
federal law has exclusive jurisdiction over such claims.
Congressional Considerations
Congress may wish to consider whether current TSDB standards and practices are adequate or should be
revised. For example, Congress might view the “reasonable suspicion” standard for additions to the
TSDB as sufficient or might determine that additions should be subject to a higher evidentiary standard,
such as probable cause. Congress may also consider internal procedural safeguards to avoid erroneous
inclusion in the TSDB and other lists, as well as the frequency of reviews and processes for redress.

Author Information

Dave S. Sidhu
Michael A. Foster
Legislative Attorney
Section Research Manager

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