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Judge rules FBI terror watchlist violates Constitution

October 1, 2019


DAVID: A FEDERAL JUDGE RULING THE FBI’S TERROR WATCH LIST VIOLATES THE CONSTITUTION. THIS LIST ALLOWS THE GOVERNMENT TO IDENTIFY TERRORISTS TRYING TO GET ON PLANES OR ENTER THE U.S. NOW, IT INCLUDES OVER A MILLION PEOPLE, INCLUDING 4600 AMERICANS. HERE NOW FOX NEWS SENIOR JUDICIAL ANALYST JUDGE ANDREW NAPOLITANO. JUDGE, DOES THE TERROR WATCH LIST VIOLATE THE CONSTITUTION?>>WELL, I THINK THAT THIS FEDERAL JUDGE IN ALEXANDRIA, VIRGINIA, MADE THE RIGHT DECISION ON THE BASIS OF THE LAW AS WE UNDERSTAND IT. SO THE FBI — DAVID: NOT EXACTLY AN ANSWER TO MY QUESTION, BUT GO AHEAD.>>WELL, I AGREE WITH HIM, AND I WOULD HAVE DONE THE SAME THING. DAVID: SO IT DOES VIOLATE THE CONSTITUTION?>>YES, YES, OBVIOUSLY NOT EVERYBODY AGREES WITH THAT STATEMENT AND HIS DECISION WILL BE APPEALED. BUT HIS DECISION IS BASED ON THE FOLLOWING: THE FBI USES SUBJECTIVE STANDARDS, UNPROVEN ALLEGATIONS, RUMOR, INNUENDO AND TO SOME EXTENT ETHNIC BACKGROUND IN ORDER TO PUT PEOPLE ON THIS LIST. SO 26 AMERICANS, AMERICAN CITIZENS CHALLENGED THIS. SOME OF THEM AS A RESULT OF BEING ON THIS LIST COULDN’T FLY, COULDN’T GET ON A TRAIN, COULDN’T CROSS AN INTERSTATE BORDER. THEY WERE STOPPED TRYING TO PAY TOLLS AT THE GEORGE WASHINGTON BRIDGE, COULDN’T ENTER SCHOOLS AND COULDN’T ENTER HOSPITALS BECAUSE OF WHAT CAME OUT OF THIS CASE IS THE FACT THAT THE FBI SHARES THIS LIST WITH LOCAL AND STATE GOVERNMENTS. SO WHEN THE FBI TRIED TO DEMONSTRATE THE MANNER WHICH IT PUTS PEOPLE ON HERE, IT WAS SO SUBJECTIVE, THE JUDGE THREW IT OUT. THE RIGHT TO TRAVEL IS A FUNDAMENTAL LIBERTY. THE SUPREME COURT HAS SAID THAT SINCE 1969. A FUNDAMENTAL LIBERTY IS IN THE SAME CATEGORY AS SPEECH AND THOUGHT AND RELIGION AND PRIVACY. THAT CAN’T BE INTERFERED WITH BY A SECRET LIST. IT CAN ONLY BE INTERFERED WITH BY DUE PROCESS. YOU WANT TO PUT SOMEBODY ON THERE? YOU HAVE TO HOLD A TRIAL AND THEY HAVE A RIGHT TO CHALLENGE IT. SENATOR EDWARD KENNEDY WAS PUT ON THE LIST 15 YEARS AFTER HE MADE SOME STATEMENTS IN FAVOR OF THE IRA AND THEIR THEN VIOLENT ACTIVITIES IN NORTHERN IRELAND. IT TOOK HIM MONTHS TO GET OFF THAT LIST.>>JUDGE, GARY KALTBAUM HERE.>>GARY.>>HOW ARE YOU SIR? I WAS LOOKING AT THE NUMBERS, DOESN’T IT HURT THE CASE THE LAST FIVE YEARS THE AMOUNT OF PEOPLE ON THE LIST HAS GONE FROM 600,000 AND CHANGE UP TO 1.2 MILLION AND I GUESS PEOPLE ARGUING CAN SAY LOOK WHAT YOU’RE DOING HERE? YOU’RE JUST THROWING EVERYBODY ON TO THIS LIST?>>IT HURTS THE GOVERNMENT’S CASE, YES.>>YES.>>BECAUSE THE GOVERNMENT — AND ONE OF THE THINGS THAT SO ANIMATED THIS FEDERAL JUDGE IS THAT NO FBI AGENT WHO TESTIFIED IN THE CASE GAVE THE SAME STORY OR THE SAME UNDERSTANDING AS TO HOW THEY PUT PEOPLE ON THE LIST. THEY JUST PUT THEM ON THE LIST, AND IF THERE WAS ANY DOUBT, THE DOUBT SHOULD BE IN FAVOR OF FREEDOM, NOT IN FAVOR OF BEING PUT ON THE LIST. THEY PUT THEM ON THE LIST IF THERE WAS ANY DOUBT.>>WASN’T IT AN ISSUE TOO THAT THEY DIDN’T TELL THEM WHY THEY WERE ON THE LIST TO BEGIN WITH?>>NOT ONLY DID THEY NOT TELL THEM WHY, THEY DIDN’T TELL THEM THEY WERE ON, SO YOU ARE CROSSING THE GEORGE WASHINGTON BRIDGE FROM NEW JERSEY TO NEW YORK, THE WAY YOU GO WHEN YOU PAY A TOLL AND A TOLL TAKER SAYS I’M NOT GOING TO TAKE YOUR MONEY. THE EASY PASS DOESN’T WORK. THEY DON’T LET YOU GO FORWARD. THEY DON’T KNOW WHY. NOBODY TELLS YOU WHY UNTIL A YEAR LATER THE LAWYER FILES A LAWSUIT AND IN THE LAWSUIT SHE FINDS OUT WHY.>>WHAT’S THE RECOMMENDATION GOING FORWARD?>>THE GOVERNMENT WOULD HAVE TO HAVE A TRIAL, A JURY TRIAL, IN ORDER TO PUT SOMEBODY ON THAT LIST.>>IN THE CASE OF A NATIONAL EMERGENCY, WHICH WAS SORT OF HOW 9/11 WAS APPROACHED OR VIEWED, I THINK, BY THE GOVERNMENT, WOULDN’T THERE BE CERTAIN POWERS GIVEN TO THE GOVERNMENT OR THE FBI THAT MIGHT ALLOW SOMETHING LIKE THIS, AT LEAST TEMPORARILY?>>NO, BECAUSE THE SUPREME COURT HAS BEEN VERY CLEAR. THERE’S NO SUCH THING AS EMERGENCY POWER UNDER THE CONSTITUTION, EVEN THOUGH THERE ARE HALF DOZEN STATUTES THAT GIVE THE PRESIDENT OF THE UNITED STATES NEAR DICTATORIAL POWERS IN THE CASE OF AN EMERGENCY THAT HE DECLARES. THERE’S NO AUTHORITY FOR THAT IN THE CONSTITUTION>>SO PRESIDENT TRUMP COULD NOT DECLARE A NATIONAL EMERGENCY AND SAY AS PART OF THE REMEDY OF THIS NATIONAL EMERGENCY, TO ADDRESS IT, WE NEED THIS WATCH LIST.>>HE PROBABLY COULD DO IT, AND BY THE TIME IT WAS INVALIDATED BY THE COURTS, THE EMERGENCY WOULD HAVE PASSED. DAVID: JUDGE I’M GETTING A WRAP. I HAVE TO THROW IN ONE MORE. THE COUNCIL ON AMERICAN ISLAMIC RELATIONS WAS A PART OF THE CHALLENGE TO THIS LAW OR THIS POSITION OF THE MILLION PEOPLE ON THE WATCH LIST. THIS IS A GROUP THAT WAS A CO-CONSPIRATOR — UNINDICTED CO-CONSPIRATOR OF A TERRORIST CASE. THEY’RE A GROUP THAT STILL DOES NOT RECOGNIZE HAMAS AS A TERRORIST ORGANIZATION. IT GIVES ME A QUALM THAT THEY WERE A PART OF THE GROUP CHALLENGING THE GOVERNMENT’S POSITION ON THIS.>>WELL, THE PEOPLE ACTUALLY DOING THE CHALLENGING ARE AMERICAN CITIZENS AND THE ACLU. DAVID: AMERICAN CITIZENS CAN MAKE MISTAKES TOO.>>RIGHT, BUT AMERICAN CITIZENS HAVE RIGHTS THAT CAN’T BE TAKEN

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