This week, a federal appeals court in Virginia enshrined the federal government’s use of the Terrorist Screening Database (TSDB). After a lower court ruling held that the TSDB’s application deprived Americans, especially those of Arab and Muslim descent, the right to due process under the law, this appeals court declared that the right to travel without burden is not one tied to fundamental liberty.
As the court stated, “What history suggests, precedent confirms: The right to travel is qualified, not absolute. Neither plaintiffs nor anyone else have a constitutionally protected interest in being able to travel domestically or internationally without incurring some burdens.”
Arab American community organizations and activists have been decrying the TSDB for some time. Invariably, governmental programs meant to protect against acts of “terrorism” are overreach and disparately target Arab Americans and Muslim Americans. The TSDB is no different. While getting on this list, because of one’s name, many times is quite easy, getting off the list is a completely different story. We have argued for some time that the federal government must come up with a fair process to allow Americans who are unjustly on this list to remove their names from it, allowing them to travel freely. As it stands now, the government won’t even confirm if one’s name is on the list or not.
To be clear, this abuse of power has spanned Democratic and Republican administrations. During last year’s election cycle, Arab Americans urged the Biden campaign to examine the TSDB for civil rights abuses, particularly since our community was feeling the brunt of its enforcement. As a result of these efforts, Biden, through his representatives, promised to look into the program. As of now, our community has heard nothing, except for this unfavorable ruling this week.
We call on the president to follow through on his promise to treat Arab Americans equitably in the administration of the “watchlist.” President Biden could announce immediately, if he wished to do so, administrative measures that would create internal processes to allow for the due process that the courts have deemed unnecessary under the Constitution
We understand quite clearly that the judicial branch is separate from the executive and legislative arms of the government. As the court wrote this week, “Any wholesale reworking or significant modification of the program rests within the purview of the democratic (legislative and executive) branches.”
We call on the president to follow through on his promise to treat Arab Americans equitably in the administration of the TSDB. President Biden could announce immediately, if he wished to do so, administrative measures that would create internal processes to allow for the due process that the courts have deemed unnecessary under the Constitution.
Further, we call on Congress to pass a bill creating methods and means for Americans to both discover their status on the TSDB and to fully petition for their removal. As it stands, the TSDB is a black hole for many Arab Americans. This must end. Michigan Senator Gary Peters, as the chairman of the Senate Homeland Security and Governmental Affairs Committee, could immediately hold hearing and introduce legislation to push this forward. We call on him to immediately do so.
The courts have decided that Americans possess no fundamental rights to travel without burdens, declaring, “The experiences alleged by plaintiffs do not rise to the level of constitutional concern.” But this disregard of our rights does not preclude the president and Congress from acting swiftly and decisively in protecting our rights and our dignity. They must keep their promises to us. They must act now.