Lawsuit claims violations watchlist violates man’s Fourth and Fifth Amendment rights
By Barbara L. Jones
BridgeTower Media Newswires
MINNEAPOLIS — The ACLU wants to get Abdisalam Wilwal of Eagan off a terrorist watchlist that caused him to be detained at the Canadian border in North Dakota for nearly 11 hours in March 2015.
His wife and children, ages 14, 8, 6 and 5 at the time, were also detained separately from Wilwal. All the members of the family are U.S. citizens.
The challenge to persons on a government watchlist is that there is no fair effective process for challenging placement on the watchlist, no explanation for why a name is on the watchlist, and no way to obtain more than minimal information, at the discretion of the government, the complaint alleges.
“You suffer consequences for governmental action but there’s nothing you can do about it,” said John Gordon, interim legal director at the ACLU of Minnesota. “This family was caught up in the government spiderweb of secret databases and watchlists. It’s a bloated and unfair system that includes more than a million names. The government won’t tell us who is on it and won’t provide a fair process to get off it. The only way to discover if you’re on it is to get mistreated by security agent.
“The whole system is unworthy of a system that calls itself a democracy,” Gordon said.
So the ACLU filed suit in federal court for the violations of the Administrative Procedure Act and the Fourth and Fifth Amendment rights of Wilwal and his family, seeking injunctive relief to get the family off the watchlist. Randall Tietjen, Amira A. ElShareif and Sarah E. Fredericks of Robins Kaplan also represent the family.
The defendants include John Kelley, secretary of the Department of Homeland Security; Kevin McAleenan, acting commissioner of U.S. Customs and Border Protection; U.S. Attorney General Jeff Sessions; and several others.
Two nationwide, long-term issues coincide in the Wilwal case — abusive border detentions and a bloated watchlisting system, said ACLU attorney Hugh Handeyside of New York City.
“This case provides an opportunity to challenge both in a way that hopefully will yield long-term benefits,” he said.
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Guns drawn
Wilwal and his family are all U.S. citizens who traveled by auto to Regina, Saskatchewan, in March 2015 and attempted to re-enter the United States a few days later through North Dakota. An estimated three Customs and Border Protection officers surrounded the vehicle with guns drawn, handcuffed Wilwal and detained the entire family for 11 hours. Wilwal eventually fainted and paramedics were called. He was given a glass of water and his hands were cuffed in front of him instead of behind his back.
His wife, Sagal Abdigani, was detained separately with her four children. She did not have her phone and was denied access to one. She attempted to use her eldest son’s phone to call 911, but officers took the phone away and told the 911 dispatcher not to send assistance. They then took the 14-year-old boy into a separate room and told him to remove his clothes. He refused. After six hours, agents gave the children some hamburgers.
About nine hours later, Homeland Security officers arrived to question Wilwal, and the family was released about 45 minutes after the interrogation started.
The complaint states that, upon information and belief, the agents came to the Portal border station from Minot, North Dakota, 95 miles away.
Wilwal, who speaks English as a second language, was denied an interpreter. He was also denied an attorney. According to the complaint, one of the officers told him that he would have to answer their questions in order to leave the station.
“It was a horrific situation for these people. We were pleased when they contacted us,” Gordon said. “They are left in a state of uncertainty as to whether this will happen again. This has been very traumatic for them.”
Due process violations
Wilwal’s due process rights are the gist of the complaint. He asserts he was denied procedural and substantive due process under the Fifth Amendment because he should not have been on the watchlist in the first place, he has no redress to challenge his placement on the watchlist and his protected liberty interest in travel is infringed. Wilwal and his family were subjected to unreasonable and unconstitutional seizure in violation of their Fourth Amendment rights, the complaint asserts. Wilwal also claims he was subjected to an excessive use of force.
The defendants also subjected the plaintiffs to arbitrary and capricious government action in violation of the Administrative Procedure Act, the complaint states. It is also a violation of the APA to place him on the watchlist, apparently mistakenly, and then afford no adequate process for redress, the complaint alleges.
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Vague and overbroad
The government’s watchlisting system is within the Terrorist Screening Center, which is within the FBI, which maintains a master watchlist called the Terrorist Screening Database.
The watchlisting system employs a vague and overbroad standard, the complaint alleges. It requires a reasonable suspicion that the person is a known or suspected terrorist. The definition of a suspected terrorist is “an individual who is reasonably suspected to be, or have been, engaged in conduct constituting, in preparation for, in aid of, or related to terrorist and/or terrorist activities based on an articulable and reasonable suspicion.”
Under the government’s Watchlisting Guidance, concrete facts are not necessary and uncorroborated information, no matter how credible, can serve as the basis for watchlisting an individual, the complaint alleges. The Terrorist Screening Center has failed to ensure that individuals who do not meet even these broad criteria are not placed on the watchlist or are promptly removed from it, the complaint continues.
(The Watchlisting Guidance is a document created by the National Counterterrorism Center setting forth the standards and procedures for placing persons onto various terrorism-related watchlists, including the government’s master watchlist. An unclassified document, it was leaked and published online in 2014.)
According to the complaint, the government does have a Department of Homeland Security Traveler Redress Inquiry Program, which transmits a form to the TSC, which is the sole arbiter if a person is retained or removed from the list. The program then sends a letter to the individual that provides no information about the watchlist and whether the person is on it or not. At no point in the process can an individual appear before a neutral decision-maker.
Wilwal and Abdigani have not received any final response from the program. They visited the Homeland Security Department but received no assistance, except to be told that Wilwal’s name was on a watchlist.
