Judge Rejects Bush Administration's 'State Secrets' Claim; Says FBI and Department of Homeland Security Must Reveal 'Watchlist'

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

http://www.aclu-il.org/news/archives/rahman2008.pdf.

SOURCE ACLU of Illinois



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