Amicus Curiae Brief — Americans for Prosperity Foundation, Petitioner v. Rob Bonta, Attorney General of California

No. 19-251

IN THE

Supreme Court of the United States

AMERICANS FOR PROSPERITY FOUNDATION,

Petitioner,

v.

XAVIER BECERRA, IN HIS OFFICIAL CAPACITY AS THE

ATTORNEY GENERAL OF CALIFORNIA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF AMICUS CURIAE

COUNCIL ON AMERICAN-ISLAMIC RELATIONS

IN SUPPORT OF PETITIONER

LENA F. MASRI

Counsel of Record

GADEIR I. ABBAS

CAROLYN M. HOMER

CAIR LEGAL DEFENSE FUND

453 New Jersey Ave., S.E.

Washington, D.C. 20003

(202) 742-6420

ldf@cair.com

September 25, 2019

Counsel for Amicus Curiae

i

CORPORATE DISCLOSURE STATEMENT

CAIR Foundation, Inc. (d/b/a “Council on American-Islamic Relations” or “CAIR”) is a 501(c)(3) notfor-profit corporation. It has no parent corporation

and no publicly-held corporation owns 10% or more

of its stock.

ii

TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT .............. i

TABLE OF CONTENTS .............................................. ii

TABLE OF AUTHORITIES ........................................ iii

INTEREST OF AMICUS CURIAE ............................. 1

SUMMARY OF ARGUMENT ...................................... 2

ARGUMENT ................................................................ 3

I. CERTIORARI

IS

WARRANTED

BECAUSE EXACTING SCRUTINY

REQUIRES

GOVERNMENTS

TO

DEMONSTRATE A COMPELLING

INTEREST

AND

NARROW

TAILORING WHEN COLLECTING

ASSOCIATIONAL INFORMATION. ............... 3

II. CERTIORARI

IS

WARRANTED

BECAUSE THE NINTH CIRCUIT’S

RATIONAL BASIS TEST HINDERS

CONSTITUTIONAL SCRUTINY OF

THE

FEDERAL

TERRORIST

WATCHLIST. .................................................... 7

CONCLUSION ........................................................... 15

iii

TABLE OF AUTHORITIES

Cases

Page(s)

ACLU v. Clapper,

785 F.3d 787 (2d Cir. 2015) .................................... 6

Alasaad v. Nielsen,

No. 17-cv-11730, 2018 WL 2170323

(D. Mass. May 9, 2018) ........................................ 14

Americans for Prosperity Foundation v. Becerra,

903 F.3d 1000 (9th Cir. 2018) ...................... passim

Baird v. State Bar of Ariz.,

401 U.S. 1 (1971) ..................................................... 5

Bates v. City of Little Rock,

361 U.S. 516 (1960) ................................................. 4

Boy Scouts of America v. Dale,

530 U.S. 640 (2000) ................................................. 4

Dole v. Serv. Employees Union, AFL-CIO, Local 280,

950 F.2d 1456 (9th Cir. 1991) ................................. 5

Elhady v. Kable,

391 F. Supp. 3d 562 (E.D. Va. 2019) ................ 9, 14

Fikre v. Fed. Bureau of Investigation,

904 F.3d 1033 (9th Cir. 2018) ............................... 10

Janus v. Am. Fed’n of State, Cty., & Mun.

Employees, Council 31,

138 S.Ct. 2448 (2018). ............................................. 4

iv

Latif v. Holder,

28 F. Supp. 3d 1134 (D. Or. 2014) ........................ 14

NAACP v. Alabama ex rel. Patterson,

357 U.S. 449 (1958) ........................................... 5. 15

Riley v. Nat’l Fed’n of the Blind of N. Carolina, Inc.,

487 U.S. 781 (1988) ................................................. 7

Roberts v. United States Jaycees,

468 U.S. 609 (1984) ............................................. 1, 7

Other Authorities

“About the Terrorist Screening Center,” FEDERAL

BUREAU OF INVESTIGATION,

available

at

https://www.fbi.gov/about/leadership-andstructure/national-security-branch/tsc. ................ 8

Alexander Abdo and Jameel Jaffer, “The courts stood

up to NSA mass surveillance. Now Congress must

act.” THE GUARDIAN (May 9, 2015), available at

https://www.theguardian.com/commentisfree

/2015/may/09/the-courts-stood-up-to-nsa-masssurveillance-now-congress-must-act ..................... 5

Border Searches of Electronic Devices, U.S. CUSTOMS

AND BORDER PROTECTION, CBP Directive No.

3340-049A (January 4, 2018), available at

https://www.cbp.gov/sites/default/files/

assets/documents/2018-Jan/CBP-Directive-3340049A-Border-Search-of-Electronic-MediaCompliant.pdf....................................................... 12

v

Christopher Mathias, Rowaida Abdelaziz, Hassan

Khalifeh, and Afaf Humayun, “The City That

Bears The Brunt Of The National Terror Watchlist,” HUFFINGTON POST (Oct. 3, 2017), available

at

https://www.huffingtonpost.com/entry/

dearborn-michigan-terror-watchlist_us_

59d27114e4b06791bb122cfe ................................ 10

Declaration of TSC Deputy Director for Operations

Timothy P. Groh (July 5, 2018) ............................. 8

Jana Winter, “TSA official tells Congress that Quiet

Skies surveillance has yet to foil any threats,”

BOSTON GLOBE (Sept. 5, 2018), available at

https://www.bostonglobe.com/

metro/2018/09/05/tsa-official-tells-congress-thatquiet-skies-surveillance-has-yet-foil-anythreats/PDS8O2lZl2j2xJRngvHK0O/story.html 15

Jana Winter, “Welcome to the Quiet Skies,” BOSTON

GLOBE

(July

28,

2018),

available

at

https://apps.bostonglobe.com/news/nation/graphic

s/2018/07/tsa-quiet-skies/ .............................. 12, 13

Jeremy Scahill and Ryan Devereaux, “The Secret

Government Rulebook for Labeling you a Terrorist,” THE INTERCEPT (July 23, 2014), available at

https://theintercept.com/2014/07/23/blacklisted/ 11

Jeremy Scahill and Ryan Devereaux, “Watch Commander,” THE INTERCEPT (Aug. 5, 2014), available

at

https://theintercept.com/2014/08/05/watchcommander/ .......................................................... 10

vi

Memorandum of Understanding Between the Transportation Security Administration and The Terrorist Screening Center Regarding the use of

Terrorist Information for Security Threat Assessment Programs, Addendum A (May 12,

2006)…………………………………………………8,9

On a Typical Day in Fiscal Year 2008, U.S. CUSTOMS

AND

BORDER

PROTECTION,

available

at

https://www.cbp.gov/newsroom/stats/previousyear/fy08/fy08-typical-day ..................................... 8

On a Typical Day in Fiscal Year 2017, U.S. CUSTOMS

BORDER

PROTECTION,

available

at

AND

https://www.cbp.gov/newsroom/stats/typical-dayfy2017 ..................................................................... 8

Senate Committee Testimony of TSA Administrator

David Pekoske (Sept. 5, 2018), available at

https://www.c-span.org/video/?4511041/transportation-security-administrationoversight&start=3762 .......................................... 13

Terrorist Watch List Screening, GAO-08-110 at 24,

GOVERNMENT ACCOUNTABILITY OFFICE (October

2007),

available

at

https://www.gao.gov

/assets/270/268006.pdf ........................................... 9

1

INTEREST OF AMICUS CURIAE1

Founded in 1994, the Council on AmericanIslamic Relations (“CAIR”) has a mission to enhance

understanding of Islam, protect civil rights, promote

justice, and empower American Muslims. A significant component of CAIR’s work is combatting Islamophobia and harmful stereotypes that falsely

associate American Muslims with terrorism. To that

end, CAIR regularly challenges the constitutionality

of the federal terrorist watchlist system, which surveils the associations of innocent American Muslims

in order to condemn them to second-class citizenship.

On September 4, 2019, in a challenge brought by

CAIR, the Eastern District of Virginia granted summary judgment that the federal terrorist watchlist

violates the Due Process Clause.

1 Pursuant to this Court’s Rule 37.6, Amicus Curiae state

that no counsel for any party authored this brief in whole or in

part and no entity or person, aside from Amicus Curiae and its

counsel, made any monetary contribution toward the preparation or submission of this brief. Pursuant to this Court’s Rule

37.3(a), Amicus Curiae note that Petitioner filed a blanket consent letter to amicus briefs with the Clerk of Court, and counsel

for Respondent consented to this brief via email. Counsel for

the parties were given timely notice of the filing of this Brief.

2

SUMMARY OF ARGUMENT

The First Amendment limits government power

to collect sensitive associational information. These

First Amendment restrictions apply to governments

alone: they are not dependent upon any risk of public

disclosure or public harassment.

Pursuant to longstanding precedent, freedom of

association claims require exacting scrutiny. Under

exacting scrutiny, the government must prove it has

a compelling governmental interest in collecting the

associational information that it cannot achieve more

narrowly. The Americans for Prosperity Foundation

v. Becerra opinion abandons this heightened legal

standard, effectively converting exacting scrutiny into rational basis review. The panel’s analytical shift

threatens not only donor disclosure cases, but also

assessment of other associational claims. Certiorari

is necessary to resolve the Ninth Circuit’s split from

other courts of appeals and define the proper exacting scrutiny standard.

For the last decade, the Council on AmericanIslamic Relations has litigated constitutional challenges to the federal terrorist watchlist system. At

its core, the federal watchlist system is a sprawling

network map of American Muslims’ associations.

The federal government’s various watchlist programs

label thousands of innocent Americans each year as

known, suspected, or potential terrorists. Once subjected to this stigmatizing label, individuals, their

families, and their associates experience intrusive

scrutiny. Adverse consequences of placement include

surveillance, border detentions, interrogation about

religious practices, denials of employment creden-

3

tials, and electronic device searches. The federal

government imposes these punishments on innocent

American Muslims without criminal investigations,

without warrants, and without arrests or convictions

for any crimes. The federal government further

withholds the criteria for placing citizens on the terrorist watchlist, while refusing to disclose either the

fact of their placement or the underlying basis of the

“suspect terrorist” label.

Because the federal terrorist watchlist system relies heavily on associations and affiliations in its operations, it imposes a severe burden on protected

First Amendment activity. Government action that

wreaks such associational havoc must be evaluated

under exacting scrutiny as defined by the Supreme

Court’s prior precedents, not the lesser akin-torational-basis standard adopted by the Ninth Circuit.

ARGUMENT

I. CERTIORARI IS WARRANTED BECAUSE

EXACTING SCRUTINY REQUIRES GOVERNMENTS TO DEMONSTRATE A COMPELLING

INTEREST

AND

NARROW

TAILORING WHEN COLLECTING ASSOCIATIONAL INFORMATION.

The Supreme Court has long held that “implicit

in the right to engage in activities protected by the

First Amendment” is “a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and

cultural ends.” Roberts v. United States Jaycees, 468

U.S. 609, 622 (1984). First Amendment associational

rights “are protected not only against heavy-handed

frontal attack, but also from being stifled by more

4

subtle governmental interference.” Bates v. City of

Little Rock, 361 U.S. 516, 523 (1960). Freedom of association can only be overridden “by regulations

adopted to serve compelling state interests … that

cannot be achieved through means significantly less

restrictive of associational freedoms." Jaycees, 468

U.S. at 623; accord Boy Scouts of America v. Dale,

530 U.S. 640, 648 (2000).

This test is known as “exacting scrutiny.” But

although this Court recently reiterated the exacting

scrutiny standard for associational claims, the Ninth

Circuit ignored it. See Pet. App. 96a (Ikuta, J., dissenting) (lamenting a panel decision “contrary to the

reasoning and spirit of decades of Supreme Court jurisprudence”). Exacting scrutiny requires judicial

evaluation of whether state action “serve[s] a compelling state interest that cannot be achieved through

means significantly less restrictive of associational

freedoms.” Janus v. Am. Fed’n of State, Cty., &

Mun. Employees, Council 31, 138 S.Ct. 2448, 2465

(2018). The Janus majority rejected a proposed alternative standard – namely whether a government

“could reasonably believe that [agency action] serves

its interests” – because it amounted to “rationalbasis review.” Id. at 2465. Such “minimal scrutiny

is foreign to our free-speech jurisprudence.” Id.

While using the words “exacting scrutiny,” the

Ninth Circuit twists their meaning into something

more resembling a judicial rubber stamp. In its first

error, the Ninth Circuit downplays the need for a

state’s interest to be “compelling.” See Pet. App. at

17a-23a. Instead, a state’s interest must only be

“important.” Id. The panel then measures that “importance” not by reference to the government’s actual

need for the associational information, but rather by

5

reference to how much the government’s wholesale

collection actually harms plaintiffs’ associations later. See id. at 23a-39a. If the government hoovers up

associational information for internal, nonpublic use

alone, then the panel’s reasoning finds no harm to

plaintiffs and no constitutional problem. See id. at

22a, 39a.

This is backward reasoning. The First Amendment requires the government to proactively justify

its need for collection of associational data – not force

members of the public to later prove that mass collection harmed their associations. See Baird v. State

Bar of Ariz., 401 U.S. 1, 6-7 (1971) (“When a State

seeks to inquire about an individual’s beliefs and associations a heavy burden lies upon it to show that

the inquiry is necessary to protect a legitimate state

interest.”). A plaintiff’s reasonable fears and prospective chilling effects are enough to show First

Amendment harm. The question is not what posthoc harms occurred, but whether the challenged government collection action “would have the practical

effect of discouraging the exercise of constitutionally

protected political rights” in the future. Dole v. Serv.

Employees Union, AFL-CIO, Local 280, 950 F.2d

1456, 1460 (9th Cir. 1991) (quoting NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 461 (1958)).

As an illustrative example, in 2013 The Guardian

published an infamous National Security Agency

slide touting that agency’s goal to “Collect it All.”2

2 See, e.g., Alexander Abdo and Jameel Jaffer, “The courts

stood up to NSA mass surveillance. Now Congress must act.”

THE GUARDIAN (May 9, 2015), available at https://www.

theguardian.com/commentisfree/2015/may/09/the-courts-stoodup-to-nsa-mass-surveillance-now-congress-must-act (linking to

copy of slide).

6

In ensuing litigation, the Second Circuit held that

the NSA’s mass metadata collection program exceeded its statutory authority, while also raising “daunting” and “serious” constitutional concerns. ACLU v.

Clapper, 785 F.3d 787, 808, 824-825 (2d Cir. 2015).

The Second Circuit concluded the act of government

collection alone – not any proven downstream harm

to secretly monitored citizens – implicated the First

Amendment. Id. at 802. “When the government collects appellants’ metadata, appellants’ members’ interests in keeping their associations and contacts

private are implicated, and any potential ‘chilling effect’ is created at that point.” Id.

In its second diversion from precedent, the Ninth

Circuit abandons any semblance of less-restrictive

means or narrow tailoring. AFPF, Pet. App. at 16a,

22a. The Ninth Circuit refers to plaintiffs as “mistaken” and the district court as “erroneous” for engaging in any assessment as to whether the Attorney

General demanding tens of thousands of confidential

donor lists a year, in order to use a handful, was

“more burdensome than necessary.” Id. at 16a, 22a.

It is only by making the district court’s factual findings legally irrelevant that the panel could set aside

the abundant evidence that “the Attorney General

does not use the Schedule B in [his] day-to-day business,” “seldom use[s] Schedule B when auditing or

investigating charities” and in the scant handful of

occasions where the donor lists were relied on, they

were “obtained from other sources.” Pet. App. at 45a

(district court judgment). “Even if the Attorney General can achieve his goals through other means,” the

Ninth Circuit summarizes, “nothing in the substantial relation test requires him to forgo the most efficient and effective means of doing so, at least not

7

absent a showing of a significant burden on First

Amendment rights.” AFPF, Pet. App. at 23a.

This is contrary to precedent. Government efficiency is not an excuse for mass violations of First

Amendment rights. Riley v. Nat’l Fed’n of the Blind

of N. Carolina, Inc., 487 U.S. 781, 795 (1988) (“[W]e

reaffirm simply and emphatically that the First

Amendment does not permit the State to sacrifice

speech for efficiency.”). The AFPF opinion missteps

by latching onto a statement of First Amendment

law applied only in election cases – where the government’s interest in fair elections is high and where

donor disclosure is presumptively the least restrictive means. See Petition for Certiorari at 2-3, 21-23.

The Ninth Circuit falters further by reinterpreting

that election standard as weaker then classic exacting scrutiny, and then by extending its reformulatedto-rational-basis standard to all First Amendment

freedom of association claims. Exacting scrutiny requires the government to prove both a compelling interest and narrow tailoring, Jaycees, 468 U.S. at 623,

but the Ninth Circuit abandoned both prongs. As

five dissenters from en banc review noted, exacting

scrutiny’s “robust protection of First Amendment

free association rights was desperately needed here.”

Pet. App. 78a.

II. CERTIORARI IS WARRANTED BECAUSE

THE NINTH CIRCUIT’S RATIONAL BASIS

TEST HINDERS CONSTITUTIONAL SCRUTINY OF THE FEDERAL TERRORIST

WATCHLIST.

CAIR and its members’ experiences with the federal terrorist watchlist emphasizes the need for robust legal protections for associational claims.

8

Following the September 11, 2001 attacks, the federal government consolidated its various security

watchlists into the Terrorist Screening Database.3

The watchlist has since sprawled in scope and adverse effects. In 2005, the watchlist listed 288,000

individuals; by 2017 it had ballooned to 1,160,000.4

In 2008, Customs and Border Protection reported

just 1 border interception per day “for terrorism related/national security concerns”; by 2017, CBP

flagged 1607 individuals per day for “suspected national security concerns.”5 Since the creation of the

consolidated watchlist, American Muslims have routinely reported targeted, discriminatory, and harassing experiences in airports, at land borders, by law

enforcement, and when applying for government credentials and licenses.6 To CAIR’s knowledge, every

See generally, “About the Terrorist Screening Center,”

BUREAU

OF

INVESTIGATION,

available

at

FEDERAL

https://www.fbi.gov/about/leadership-and-structure/nationalsecurity-branch/tsc.

3

4 Compare Terrorist Watch List Screening, GAO-08-110 at

24, GOVERNMENT ACCOUNTABILITY OFFICE (October 2007),

available at https://www.gao.gov/assets/270/268006.pdf with

Declaration of TSC Deputy Director for Operations Timothy P.

Groh at 2 (July 5, 2018), publicly filed at Elhady v. Kable, No.

1:16-cv-00375, Dkt. 253-2.

5 Compare On a Typical Day in Fiscal Year 2008, CUSTOMS

AND BORDER PROTECTION, available at https://www.cbp.gov

/newsroom/stats/previous-year/fy08/fy08-typical-day; with On a

Typical Day in Fiscal Year 2017, CUSTOMS AND BORDER PROTECTION, available at https://www.cbp.gov/newsroom/stats/

typical-day-fy2017.

See, e.g., Memorandum of Understanding Between the

Transportation Security Administration and The Terrorist

Screening Center Regarding the use of Terrorist Information

for Security Threat Assessment Programs, Addendum A (May

12, 2006), publicly filed at Elhady v. Kable, No. 1:16-cv-00375

6

9

challenge to the watchlist has been brought by Muslims, often with multiple if not dozens of Muslim

plaintiffs per case.7

The federal terrorist watchlist system rests on a

foundation of bulk collection and analysis of American Muslims’ associations. As the Eastern District of

Virginia recognized on September 4, 2019, the Terrorist Screening Center may “consider an individual's travel history, associates, business associations,

international associations, financial transactions,

and study of Arabic as information supporting a

nomination to the TSDB.” Elhady v. Kable, 391 F.

Supp. 3d 562 (E.D. Va. 2019). “The vagueness of the

standard for inclusion in the TSDB, coupled with the

lack of any meaningful restraint on what constitutes

grounds for placement on the Watchlist, constitutes,

(E.D. Va.), Dkt. 253-11, Exhibit 30 (providing list of passenger,

aviation employee, and government credential screening programs against which TSA crosschecks the watchlist).

See, e.g., Complaints in Rahman v. Chertoff, No. 05-cv3761 (N.D. Ill.); Ibrahim v. U.S. Dep't of Homeland Sec., No. 06cv-00545 (N.D. Cal.); Scherfen v. U.S. Dep’t of Homeland Security, No. 3:08-cv-1554 (M.D. Pa.); Latif v. Holder, 3:10-cv-00750

(D. Or.); Shearson v. Holder, No. 1:10-cv-1492 (N.D. Ohio); Mohamed v. Holder, No. 1:11-cv-50 (E.D. Va.); Abdallah v. JetBlue

Airways Corp., No. 12-cv-1050 (D.N.J.); Mokdad v. Holder, 2:13cv-12038 (E.D. Mich.); Fikre v. FBI, 3:13-cv-00899 (D. Or.);

Tarhuni v. Holder, 3:13-cv-00001 (D. Or.); Tanvir v. Tanzin, No.

13-CV-6951 (S.D.N.Y.); Ege v. U.S. Dep’t of Homeland Security,

No. 13-1110 (10th Cir.); Beydoun v. Lynch, No. 14-cv-13812

(E.D. Mich.); Kadura v. Lynch, No. 14-cv-13128 (E.D. Mich.);

Long v. Lynch, 1:15-cv-01642 (E.D. Va.); Bazzi v. Lynch, 16-cv10123 (E.D. Mich.); Elhady v. Piehota, No. 1:16-cv-375 (E.D.

Va.); Amiri v. Kelly, No. 17-cv-12188 (E.D. Mich.); Abdi v. Wray,

No. 2:17-cv-622 (D. Utah); Kovac v. Wray, 3:18-cv-110 (N.D.

Tx.); El Ali v. Sessions, 8:18-cv-02415 (D. Md.).

7

10

in essence, the absence of any ascertainable standard

for inclusion and exclusion, which is precisely what

offends the Due Process Clause. Id. (internal citations omitted).

The Terrorist Screening Center’s pervasive use of

associational information causes overwhelming network effects in Muslim communities. The ArabAmerican city of Dearborn, Michigan is second only

to New York City for its total number of watchlistees, despite having a population of less than

100,000.8 In Dearborn, stories of closed bank accounts, shuttered charities, surveilled mosques, and

planted bugs abound.9 As a different Ninth Circuit

panel noted last year, presence on a federal watchlist

has “actual and palpable consequences,” including

the likely tendency of watchlist status to cause “acquaintances, business associates, and perhaps even

family members” to shun individuals the government

has dubbed suspected terrorists. Fikre v. Fed. Bureau of Investigation, 904 F.3d 1033, 1040 (9th Cir.

2018). In Fikre, the plaintiff’s “No Fly List” designation centered around government investigation of his

association with a specific Portland mosque. Id. at

1035.

8 Jeremy Scahill and Ryan Devereaux, “Watch Command-

er,” THE INTERCEPT (Aug. 5, 2014), available at https://

theintercept.com/2014/08/05/watch-commander/.

See generally, Christopher Mathias, Rowaida Abdelaziz,

Hassan Khalifeh, and Afaf Humayun, “The City That Bears

The Brunt Of The National Terror Watchlist,” HUFFINGTON

POST (Oct. 3, 2017), available at https://www.huffingtonpost

.com/entry/dearborn-michigan-terror-watchlist_us_59d27114

e4b06791bb122cfe.

9

11

Leaked to the media in 2014,10 the 2013 Watchlisting Guidance governs all intelligence agency and

law enforcement operations surrounding the watchlist.11 The 2013 Watchlisting Guidance has no

qualms about relying on affiliations and associations

in order to classify American citizens as terrorists.

“Individuals identified as associates or affiliates” of

watchlisted individuals can, on that basis alone, be

nominated as suspected terrorists.12 Watchlisted individuals’ foreign family members are themselves

added to the watchlist, for the purposes of denying

passports and visas. 2013 Watchlisting Guidance at

22-23, 32, 42-43. The Watchlisting Guidance instructs government officers to document watchlisted

individuals’:



“Immediate family members.” Id. at 5, 75.



“Known associates.” Id. at 5, 75.



“Traveling associates.” Id. at 66.



“Membership cards.” Id. at 68.



“Cell phone [contact] list and speed dial numbers.” Id. at 68.

See Jeremy Scahill and Ryan Devereaux, “The Secret

Government Rulebook for Labeling you a Terrorist,” THE INTERCEPT (July 23, 2014), available at https://theintercept.com/

2014/07/23/blacklisted/.

10

11 The 2013 Watchlisting Guidance has been superseded by

the 2015 and then 2018 Watchlisting Guidance, which have not

been publicly disclosed. CAIR understands the current Watchlisting Guidance to be substantially similar to prior iterations.

12 See March 2013 Watchlisting Guidance at 38-39, availa-

ble at https://theintercept.com/document/2014/07/23/march2013-watchlisting-guidance/.

12



“Social networking accounts.” Id. at 69.



“Any additional biographic or biometric identifiers to enhance identity matching” of watchlisted individuals’ associates, family members,

or persons listed in their paper documents. Id.

at 67.

In furtherance of the watchlist, CBP copies the

complete contents of watchlisted individuals’ phones

each time they cross the border.13 As a matter of policy, “the presence of an individual on a governmentoperated and government-vetted terrorist watch list”

justifies a complete “advanced search” to “review,

copy, and/or analyze [the] contents” of any electronic

device. CBP Directive No. 3340-049A at § 5.1.4.

This associational documentation feeds further enhanced government scrutiny and surveillance. In

CAIR’s experience, American Muslims are often

flagged for secondary inspections and enhanced

screenings due to being listed as contacts in watchlisted family members’ and friends’ phones.

In the summer of 2018, the Boston Globe reported

on associational harms extending far beyond even

the Terrorist Screening Database’s collection of

“known or suspected terrorists.14 The Transportation Security Administration’s previously undisclosed “Quiet Skies” program attempts to identify

13 See Border Searches of Electronic Devices, U.S. CUSTOMS

AND BORDER PROTECTION, CBP Directive No. 3340-049A (Janu-

ary 4, 2018), available at https://www.cbp.gov/sites/default/files

/assets/documents/2018-Jan/CBP-Directive-3340-049A-BorderSearch-of-Electronic-Media-Compliant.pdf.

14 See Jana Winter, “Welcome to the Quiet Skies,” BOSTON

GLOBE (July 28, 2018), available at https://apps.bostonglobe

.com/news/nation/graphics/2018/07/tsa-quiet-skies/.

13

“unknown or partially known terrorists” by assigning

Federal Air Marshalls to tail individuals with “affiliations” and “associations” with “watch listed terrorism suspects.”15

Federal Air Marshals then

document who the tailed individuals travel with,

converse with, and meet with at airports and on

flights.16 The Transportation Security Administration has since bragged to Congress that it nominates

individuals to the main federal terrorist watchlist as

a result of Quiet Skies surveillance.17

Due to these federal watchlist programs, American Muslims, their family members, their coworkers,

and their travelling companions are routinely labeled

and punished as terrorists despite lacking any criminal record or pending criminal investigation. One of

CAIR’s pending constitutional challenges to the federal terrorist watchlist system details family, business, and associational harms to 40 Muslim

plaintiffs. El Ali v. Barr, 8:18-cv-02415 (D. Md.)

(Second Amended Complaint). It includes a First

Amendment freedom of association claim. See id.

In the spring of 2018, the federal Massachusetts

district court permitted a comparable First Amendment associational claim to survive the motion to

15 See id. (link to March 2018 Quiet Skies bulletin), availa-

ble at https://assets.documentcloud.org/documents/4620695/Doc

-Bulletin-2.pdf.

See id. (link to behavioral checklist), available at

https://assets.documentcloud.org/documents/4620696/DocChecklist-2.pdf.

16

17 See Senate Committee Testimony of TSA Administrator

David Pekoske at 1:08 (Sept. 5, 2018), available at

https://www.c-span.org/video/?451104-1/transportation-securityadministration-oversight&start=3762.

14

dismiss phase, in a challenge brought by the ACLU.

Alasaad v. Nielsen, No. 17-cv-11730, 2018 WL

2170323, at *23 (D. Mass. May 9, 2018). There the

district court concluded that the government’s “motivation to search and retain [p]laintiffs’ devices [is] to

examine expressive or associational material,” and

when the government seizes “confidential lists of organizational members and supporters,” then plaintiffs plausibly allege a “substantial burden [on]

travelers’ First Amendment rights.” Id. at *23-24

(cleaned up). Summary judgment on that matter is

pending.

It bears repeating: nomination to and presence on

a federal terrorist watchlist is not the result of criminal investigation and bears no relationship to arrests or convictions for any crime. See, e.g., Latif v.

Holder, 28 F. Supp. 3d 1134, 1152–53 (D. Or. 2014)

(finding “high risk of erroneous deprivation” of

watchlisted individuals’ “constitutionally-protected

interests” due in part to the “low evidentiary threshold” for watchlist nominations). Watchlist consequences flow without probable cause and without

execution of any warrant. See, e.g., CBP Directive

No. 3340-049A § 5.1.4. A federal court this month

found the combination of associational harms from

the government labeling Muslims as “suspected terrorists,” the vague innocent-conduct and associationbased criteria for watchlist nominations, and the

complete lack of notice of watchlist placement or an

opportunity to learn of or challenge the reasons for

that status, violated the Due Process Clause. Elhady

v. Kable, 391 F. Supp. 3d 562 (E.D. Va. 2019).

And yet, the federal government continues to defends its watchlist programs with arguments strikingly similar to those adopted by the California

15

Attorney General and endorsed by the AFPF panel.

Specifically, the federal government regularly asserts that dissemination of associational information

and “terrorist” labels to government officials alone

cannot, as a matter of law, impair liberty or cause

constitutional harm. See, e.g., Elhady v. Kable, No.

1:16-cv-00375, Motion to Dismiss, Dkt. 29 at 33-35

(E.D. Va. Nov. 4, 2016). In the federal government’s

view, the admission that its associational watchlisting programs have ensnared zero threats does not

affect its rational basis for enacting them.18

Watchlist litigation is illustrative as to why robust application of exacting scrutiny is necessary to

constitutional protections of fundamental liberties.

The watchlist, like the membership disclosures in

NAACP v. Alabama, chills American Muslims’ associations due to the federal government’s collection of

relational data and imposition of adverse consequences alone. Subjecting governments to only rational basis review creates a world that permits

sweeping associational surveillance.

CONCLUSION

Americans for Prosperity Foundation’s petition

for a writ of certiorari should be granted, so as to define the proper exacting scrutiny standard for First

Amendment associational claims.

18 See, e.g., Jana Winter, “TSA official tells Congress that

Quiet Skies surveillance has yet to foil any threats,” BOSTON

GLOBE (Sept. 5, 2018), available at https://www.bostonglobe

.com/metro/2018/09/05/tsa-official-tells-congress-that-quietskies-surveillance-has-yet-foil-any-threats/PDS8O2lZl2j2xJR

ngvHK0O/story.html.

16

LENA F. MASRI

Counsel of Record

GADEIR I. ABBAS

CAROLYN M. HOMER

CAIR LEGAL DEFENSE

FUND

453 New Jersey Ave., S.E.

Washington, D.C. 20003

(202) 742-6420

ldf@cair.com

September 25, 2019

Counsel for Amicus Curiae