A federal magistrate on Friday ordered the government to disclose to him and to plaintiffs’ attorneys a list of private organizations that receive access to the government’s list of known or suspected terrorists.
Judge John Anderson issued the ruling at the conclusion of a hearing in U.S. District Court in Alexandria which he angrily questioned government lawyers about their failure to previously disclose that hundreds of private entities like universities and hospitals receive access to the list.
The government admitted earlier this month in a court filing that private groups like universities and hospitals receive access to the list, after denying in previous court hearings and depositions that they do.
A government lawyer said the oversight was a mistake and there was no intention to deceive.
“We didn’t catch that one,” government lawyer Antonia Konkoly said of the misstatements about the list, noting that the watchlist administration is “a very broad operation.”
The Council on American-Islamic Relations is challenging the watchlist’s constitutionality. It says innocent Muslims are placed on the list by mistake and suffer numerous consequences as a result.
The government also revised its estimate of how many private groups get access to the list, from more than 1,400 to fewer than 700.
Konkoly, the government’s lawyer, said the initial estimate given earlier this month of 1,441 contained numerous duplicates. She said it’s hard to determine an exact number because many of the private entities have similar names, and some of the recordkeeping goes back to “before the age of modern computing.”
CAIR’s lawyers have long suspected that the list is disseminated much more widely than the government has acknowledged. The broad terror watchlist contains hundreds of thousands of names; the much smaller no-fly list is culled from the watchlist.
CAIR’s lawsuit is filed on behalf of Muslim clients who say they have not only suffered travel consequences as a result of placement on the list but also difficulty in processing financial transactions and interactions with law enforcement.
At Friday’s hearing, Konkoly said the private groups receiving the list are “law-enforcement adjacent” entities like police forces for private universities and railroads.
“There’s nothing shocking about any of the entities on the list,” Konkoly said.
“What may not be shocking to you may be shocking to me or shocking to the plaintiffs,” Anderson responded.
As a result, Anderson ordered the government to provide him a list of the private agencies. He also ordered, over the government’s objection, that the CAIR attorneys be permitted review the list at a secure government location. But the attorneys will not be allowed to keep a copy of the list and are barred from disseminating it publicly.
Lena Masri, a CAIR attorney, called Anderson’s ruling “a huge step forward to help us understand the breadth of the dissemination.”
That breadth of dissemination is a key aspect of the CAIR’s lawsuit, because the plaintiffs allege that the list is shared so broadly that people suffer consequences in all aspects of life.
Anderson said he was frustrated that the government did not provide accurate information about the list’s private dissemination until roughly two years after the lawsuit was filed, despite specific orders from a judge to come clean on this very topic.
He also expressed frustration that the FBI’s Terrorist Screening Center, which manages the list, had insufficient answers about how other government agencies share the list. The fewer-than-700 entities referenced in the lawsuit refers only to those private entities that get the data directly from the Terrorist Screening Center. It does not count what other government agencies, like Customs and Border Protection and the Transportation Security Administration, do with the list.
The TSA shares its data with airlines, but Anderson questioned Konkoly about who else might receive the list. Konkoly provided assurances that private corporations like banks and car dealerships don’t get the list, but Anderson questioned how she could state that confidently without knowing more about the workings of the other government agencies.
“You don’t know what (the department of Homeland Security) does with the information,” Anderson said.
CAIR lawyer Gadeir Abbas said it’s become clear over the course of the lawsuit that so many government entities are intertwined with the collection and dissemination of the watchlist that nobody truly knows its scope.
“Each agency claims they don’t know what the other agency is doing,” he said.