Terror Reporting Tool Survives Challenge

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By George Khoury, Esq. on February 01, 2019 6:12 AM

According to a panel of judges at Ninth Circuit Court of Appeals, the way that individuals are moved on to the terrorist watch list does not require reasonable suspicion and does not equate to an investigation.

In short, the court upheld the right of investigators to share information that came from tips and leads, which require "mere suspicion" rather than "reasonable suspicion" in order to be acted upon. The case came to light after men who were just going about their normal days, doing completely normal things, were reported as suspicious and landed on the watch list.

No Violation From Agency Inaction

The appellate court explained that the policy of sharing that was being challenged under the Administrative Procedure Act was neither arbitrary, nor capricious, and it was not required to go through the usual notice and comment procedure proscribed by the APA. The challengers sought to stop the inter-agency sharing and retention of SARs (suspicious activity reports) that did not rise to the level of "reasonable suspicion."

As the court noted, the policy at issue was not developed via legislative action, but rather simply a final agency action. It further explained that the policy was tailored at sharing the uncorroborated leads and tips that reached the level of "mere suspicion" across multiple agencies in order to help fight terrorism related activity.

Curiously, as the court mentioned in a footnote, the plaintiffs did not make a constitutional challenge, or even challenge the application of the law to them individually as unconstitutional.

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