Elhady v. Kable

993 F.3d 208

Anas ELHADY; Osama Hussein Ahmed; Ahmad Ibrahim Al Halabi; Michael Edmund Coleman; Murat Frljuckie; Adnan Khalil Shaout; Wael Hakmeh; Saleem Ali ; Samir Anwar; John Doe, No. 2; John Doe, No. 3; Shahir Anwar; Baby Doe, 2; Yaseen Kadura; Hassan Shibly; Ausama Elhuzayel; Donald Thomas; Ibrahim Awad; Muhammad Yahya Khan; Hassan Fares ; Zuhair El-Shwehdi; John Doe, No. 4; Mark Amri, Plaintiffs – Appellees,

v.Charles H. KABLE, Director of the Terrorist Screening Center, in his official capacity; Kelli Ann Burriesci, Principal Deputy Director of the Terrorist Screening Center in her official capacity; Timothy P. Groh, Deputy Director for Operations at the Terrorist Screening Center in his official capacity; Deborah Moore, Director of Department of Homeland Security Traveler Redress Inquiry Program in her official capacity; Nicholas J. Rasmussen, Director of the National Counterterrorism Center in his official capacity; David Pekoske, Administrator of the Transportation Security Administration in his official capacity; Christopher Wray, Director of the Federal Bureau of Investigation in his official capacity; Kevin K. McAleenan, Acting Commissioner of United States Customs and Border Protection in his official capacity, Defendants – Appellants,The Rutherford Institute; Cato Institute; Fred T. Korematsu Center for Law & Equality; Firearms Policy Coalition, Inc. ; Firearms Policy Foundation; Jeffrey Kahn ; Electronic Frontier Foundation; Muslim Advocates; American Civil Liberties Union; American-Arab Anti-discrimination Committee; Arab American Institute; Brennan Center for Justice at NYU School of Law ; Center for Constitutional Rights; Creating Law Enforcement Accountability & Responsibility Project At City University of New York; Sikh Coalition, Amici Supporting Appellees.

Anas Elhady; Osama Hussein Ahmed; Ahmad Ibrahim Al Halabi; Michael Edmund Coleman; Murat Frljuckie; Adnan Khalil Shaout; Wael Hakmeh; Saleem Ali ; Samir Anwar; John Doe, No. 2; John Doe, No. 3; Shahir Anwar; Baby Doe, 2; Yaseen Kadura; Hassan Shibly; Ausama Elhuzayel; Donald Thomas; Ibrahim Awad; Muhammad Yahya Khan; Hassan Fares ; Zuhair El-Shwehdi; John Doe, No. 4; Mark Amri, Plaintiffs – Appellees,

v.Charles H. Kable, IV, Director of the Terrorist Screening Center, in his official capacity; Kelli Ann Burriesci, Principal Deputy Director of the Terrorist Screening Center in her official capacity; Timothy P. Groh, Deputy Director for Operations at the Terrorist Screening Center in his official capacity; Deborah Moore, Director of Department of Homeland Security Traveler Redress Inquiry Program in her official capacity; Nicholas J. Rasmussen, Director of the National Counterterrorism Center in his official capacity; David P. Pekoske, Administrator of the Transportation Security Administration in his official capacity; Christopher Asher Wray, Director of the Federal Bureau of Investigation in his official capacity; Kevin K. McAleenan, Acting Commissioner of United States Customs and Border Protection in his official capacity, Defendants – Appellants,The Rutherford Institute; Cato Institute; Fred T. Korematsu Center for Law & Equality; Firearms Policy Coalition, Inc. ; Firearms Policy Foundation; Jeffrey Kahn ; Electronic Frontier Foundation; Muslim Advocates; American Civil Liberties Union; American-Arab Anti-Discrimination Committee; Arab American Institute; Brennan Center for Justice at NYU School of Law ; Center for Constitutional Rights; Creating Law Enforcement Accountability & Responsibility Project At City University of New York; Sikh Coalition, Amici Supporting Appellees.

No. 20-1119

No. 20-1311

United States Court of Appeals, Fourth Circuit.

Argued: January 26, 2021

Decided: March 30, 2021

ARGUED: Joshua Paul Waldman, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. Gadeir Ibrahim Abbas, CAIR LEGAL DEFENSE FUND, Washington, D.C., for Appellees. ON BRIEF: Joseph H. Hunt, Assistant Attorney General, G. Zachary Terwilliger, United States Attorney, Sharon Swingle, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. Lena F. Masri, Justin Sadowsky, CAIR LEGAL DEFENSE FUND, Washington, D.C., for Appellees. John W. Whitehead, Douglas R. McKusick, THE RUTHERFORD INSTITUTE, Charlottesville, Virginia; Ilya Shapiro, Clark M. Neily III, CATO INSTITUTE, Washington, D.C.; Bradley D. Jones, Nicole P. Desbois, ODIN, FELDMAN & PITTLEMAN, P.C., Reston, Virginia, for Amici The Rutherford Institute and Cato Institute. Robert S. Chang, Jessica Levin, Fred T. Korematsu Center for Law and Equality, Ronald A. Peterson Law Clinic, SEATTLE UNIVERSITY SCHOOL OF LAW, Seattle, Washington; Muhammad U. Faridi, Sofia G. Syed, Andrew Willinger, PATTERSON BELKNAP WEBB & TYLER LLP, New York, New York, for Amicus The Fred T. Korematsu Center for Law and Equality. Matthew Larosiere, FIREARMS POLICY COALITION, Sacramento, California; Reilly Stephens, Alexandria, Virginia, for Amici Firearms Policy Coalition and Firearms Policy Foundation. Patrick Toomey, Noor Zafar, Hina Shamsi, Hugh Handeyside, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, for Amici American Civil Liberties Union, American-Arab Anti-Discrimination Committee, Arab American Institute, Brennan Center for Justice, Center for Constitutional Rights, Creating Law Enforcement Accountability & Responsibility Project, and the Sikh Coalition. Andrew T. Tutt, R. Stanton Jones, Stephen K. Wirth, Shira V. Anderson, ARNOLD & PORTER KAYE SCHOLER LLP, Washington, D.C., for Amicus Professor Jeffrey D. Kahn. Matthew W. Callahan, MUSLIM ADVOCATES, Washington, D.C., for Amicus Muslim Advocates. Matthew Borden, Athul Acharya, Gunnar Martz, BRAUNHAGEY & BORDEN LLP, San Francisco, California; Saira Hussain, Mark Rumold, Kit Walsh, ELECTRONIC FRONTIER FOUNDATION, San Francisco, California, for Amicus Electronic Frontier Foundation.

Before WILKINSON, RICHARDSON, and QUATTLEBAUM, Circuit Judges.

Reversed and remanded by published opinion. Judge Wilkinson wrote the opinion, in which Judge Richardson and Judge Quattlebaum joined.

WILKINSON, Circuit Judge:

To protect against acts of terrorism, the government maintains the Terrorist Screening Database (TSDB). One of the chief uses of the TSDB is to screen travelers in airports and at the border. The plaintiffs, twenty-three individuals who allege they are in the TSDB, object to the delays and inconveniences they have experienced in airports and at the border. They allege the TSDB program violates the Fifth Amendment's Due Process Clause by failing to include more procedural safeguards.

The term "national security" is too often bandied loosely and carelessly about, but this is no program of marginal consequence. It lies at the very heart of our country's effort to identify those who would inflict upon the public irretrievable loss and irreparable mass harms. By bringing this across-the-board attack on a system vital to public safety—rather than more focused individual challenges to particular law enforcement actions—plaintiffs face a demanding legal standard. Procedural due process claims require showing that the government violated constitutionally protected liberty interests. Plaintiffs cannot meet that burden. The government has had authority to regulate travel and control the border since the beginning of the nation. Indeed, this authority is a core attribute of sovereignty. The delays and burdens experienced by plaintiffs at the border and in airports, although regrettable, do not mandate a complete overhaul of the TSDB.

Nor are plaintiffs’ alleged reputational injuries more persuasive. The government has not publicly disclosed their TSDB status, the inconveniences protested reflect no singular disapprobation, and plaintiffs have not demonstrated the loss of any legal rights due to their alleged TSDB inclusion.

This by no means places the TSDB program above the law. Individual applications of the program may run afoul of recognized legal prohibitions and thus remain subject to judicial review. But any wholesale reworking or significant modification of the program rests within the purview of the democratic branches. Two of our sister courts of appeals reached the same conclusions in similar challenges to the TSDB. See Abdi v. Wray , 942 F.3d 1019 (10th Cir. 2019) ; Beydoun v. Sessions , 871 F.3d 459 (6th Cir. 2017). We find these decisions persuasive and decline the invitation to create a circuit split. We therefore reverse the district court's conclusion to the contrary and remand with instructions to enter judgment in favor of the government.

I.

A.

The rise of international terrorism in the twenty-first century pushed the government to establish a national security apparatus to combat it. Created by executive order, the TSDB is the federal government's consolidated watchlist of known or suspected terrorists. The TSDB is maintained by the Terrorist Screening Center (TSC), a multi-agency center administered by the FBI. The FBI and TSC work in coordination with the National Counterterrorism Center and the Department of Homeland Security (DHS) and its components, including the Transportation Security Administration (TSA) and U.S. Customs and Border Protection (CBP).

There are 1,160,000 individuals in the TSDB, but only about 4,600 of them are U.S. citizens. J.A. 378. Individuals enter the TSDB through nomination, usually by a federal law enforcement agency. Before an individual is placed in the TSDB, a multi-step process is followed that includes review by TSC staff. The nomination must rely upon "articulable intelligence or information" which "creates a reasonable suspicion that the individual is engaged, has been engaged, or intends to engage, in conduct constituting, in preparation for, in aid or in furtherance of, or related to, terrorism and/or terrorist activities." J.A. 380–81. TSC considers a broad variety of factors in deciding whether to add someone to the list, including an individual's travel history,...