Judge Rejects Bush Administration's 'State Secrets' Claim; Says FBI and Department of Homeland Security Must Reveal 'Watchlist' Status for Americans Seeking End to Unnecessary, Unlawful Border Stops

Apr 23, 2008, 01:00 ET from ACLU of Illinois

    CHICAGO, April 23 /PRNewswire-USNewswire/ -- In a case challenging
 repeated, lengthy and abusive border stops of American citizens upon their
 return to the United States after traveling abroad, a federal magistrate
 judge in Chicago has ordered the Department of Homeland Security (DHS) and
 the Federal Bureau of Investigation (FBI) to disclose to the named
 plaintiffs whether or not their names appear on the Terrorist Screening
 Database (TSDB). In making his ruling, U.S. Magistrate Judge Sidney
 Schenkier rejected the Bush Administration's assertion of a "state secrets"
 privilege. Under the order made public for the first time last week, the
 government must produce documents indicating whether the ten named
 plaintiffs in the case, including lead plaintiff Akif Rahman of suburban
 Chicago, are listed on the TSDB.
     In rejecting the government's argument that revealing any information
 about the plaintiffs' status on the TSDB would reveal "secret" information,
 Judge Schenkier wrote that "courts may not uncritically accept the
 government's assertion of the state secrets privilege." After reviewing
 arguments on both sides, Judge Schenkier noted that the government "on
 certain occasions has disclosed to persons information that would tend to
 confirm or deny their TSDB status." Judge Schenkier's reference was to
 several letters written to members of Congress who inquired about the
 repeated stops of their constituents.
     The Bush Administration repeatedly has invoked a claim of "state
 secrets" as a shield against judicial review of various surveillance and
 other policies secretly implemented in recent years. The Administration, as
 an example, invoked "state secrets" to block litigation brought on behalf
 of Khaled El-Masri, a German National who was kidnapped while on vacation
 in Macedonia, secretly transported to Afghanistan and subjected to beatings
 and torture. In response to this case and others, legislation was
 introduced in both the U.S. House and the Senate to regulate the assertion
 of the "state secrets" privilege, calling for judicial review of the actual
 materials claimed to contain state secrets.
     "We are gratified with the judge's decision," said Harvey Grossman,
 Legal Director of the ACLU and lead counsel in Rahman v. Chertoff. "The
 government should not be able to end litigation and escape accountability
 for mistreatment of our fellow citizens simply by asserting that the case
 will result in the revelation of state secrets."
     "Judge Schenkier has provided a process where our clients get their day
 in court and national security is protected," added Grossman.
     The redacted ruling issued last week is the latest development in a
 lawsuit filed on behalf of Mr. Rahman in June 2005 asking the federal
 government to implement changes to the Federal Bureau of Investigation's
 Terrorist Screening Center (TSC) and the policies of Customs and Border
 Protection (CBP) to ensure that he no longer was subjected to detentions
 and harassment by federal officials when re-entering the United States.
 Since March 2004, Mr. Rahman was detained and questioned by Department of
 Homeland Security (DHS) officials on multiple separate occasions as he
 re-entered the country after business or personal trips abroad, detentions
 lasting unreasonably lengthy times -- up to six hours. On one occasion, Mr.
 Rahman was subjected to unnecessary excessive force during a body search,
 and painfully shackled to a chair for approximately three hours while
 isolated from his wife and children.
     The federal court has allowed Mr. Rahman and the nine other named
 plaintiffs to represent a class of thousands of U. S. citizens who are
 wrongly detained according to the American Civil Liberties Union of
 Illinois. These citizens and their family members are stopped, questioned,
 abused and harassed at points of entry to the country each year -- action
 that results from flaws in the TSC. According to reports of the Inspector
 General of the Justice Department, the TSC administers a database with more
 than 200,000 names, persons who are claimed by the government to have "any
 degree of terrorism nexus." The reports identify the two major flaws in the
 system which is the focus of the lawsuit. First, the process for
 classifying these individuals is flawed, resulting in many individuals
 being "over-classified," considered dangerous when they pose no real threat
 to our nation. Second, mistakes in the database operated by the TSC cause
 many individuals to be "misidentified," and subject to terrorist screening
 for no reason whatsoever. As a result of these two problems, the plaintiffs
 in today's lawsuit collectively have been stopped and questioned on more
 than thirty (30) occasions, despite the fact that they are law abiding
 citizens, always cleared for re-entry to the U.S. after these recurring and
 punitive detentions.
     Three recent public reports by the DOJ's Inspector General found other
 serious deficiencies in the operation of the TSDB, in addition to
 systematic misidentification and over-classification. The reports found,
 for example, that after the FBI closes an investigation that leads to
 someone being placed on the watch list, the FBI often fails to remove the
 investigated persons from the watchlist; that the watchlist indicates that
 many people are "armed and dangerous," even though there is no factual
 predicate for the claim; and, that the watchlist's quality assurance system
 is weak, suffering from inadequate operating procedures and insufficient
 training, resulting in the failure to detect and correct errors.
     Judge Schenkier's ruling also requires the FBI to produce for his
 review any investigative files it has related to the named plaintiffs. The
 Judge found that information in the files can be withheld as a state secret
 if it related to "sources and methods" of intelligence collection, but said
 that court would review the materials in chambers and determine whether any
 of the information can be shared with the plaintiffs.
     "We look forward to moving forward and vindicating the rights of our
 clients," added Grossman.
     A copy of the Judge's decision can be found on-line at

SOURCE ACLU of Illinois