Priyanka Mara
92 Geo. Wash. L. Rev. Arguendo 45
Since their inception over twenty years ago, contemporary government terrorist watchlists have faced routine criticism. These watchlists are infamously secretive, with both the identities of the listees and the procedure for placement on the list largely undisclosed, despite government and public accountability investigations revealing errors, inconsistencies, and carelessness in their curation and review. In particular, plaintiffs seeking to challenge their placement on these watchlists suffer from this secrecy. Even after detention or enhanced screening resulting from alleged placement on a government watchlist, detainees must jump through numerous administrative hoops to, at best, be provided with a vague and undetailed summary of the reason for their placement on the list, and thus are unable to adequately challenge their placement.
In attempting to seek recourse, plaintiff detainees often bring due process claims in federal court, arguing that they were deprived of a fundamental liberty without adequate procedural due process. However, when evaluating these claims federal courts routinely defer to a purported governmental national security interest in maintaining secrecy around these watchlists over assertions of harms to plaintiffs, the value of additional procedures, and the risk of erroneous deprivation. In doing so, plaintiffs and advocates are left at a disadvantage and struggle to achieve recourse for alleged mistreatment.
This Essay compares the Eastern District of Virginia’s recent decision on the issue in Elhady v. Kable and the Fourth Circuit’s subsequent reversal. In doing so, this Essay argues that federal courts’ routine deference to asserted national security interests diminishes real plaintiff harms and high risks of erroneous deprivation. Thus, given this tendency, courts should consider adopting other judicial mechanisms that may be better suited to adequately analyzing the effectiveness of due process protections in the context of government terrorist watchlists.
