In Win for CLEAR and ACLU, Court Orders CBP to Release Information about Secret Team Targeting and Detaining Innocent Travelers

In an important win for transparency, the U.S. District Court for the Eastern District of New York has ordered U.S. Customs and Border Protection (CBP) to turn over information about the secret teams CBP is deploying across at least 46 airports and other U.S. ports of entry to target, detain, and interrogate innocent travelers.

This decision comes as a result of a Freedom of Information Act (FOIA) lawsuit filed against CBP by the American Civil Liberties Union, New York Civil Liberties Union, and CLEAR Clinic at the CUNY School of Law in December 2019.

“The public has a right to know how these teams operate, how their officers are trained, and whether the guidelines that govern their activities contain civil liberties and privacy safeguards,” said Scarlet Kim, senior staff attorney at ACLU’s National Security Project. “We look forward to finding out more about why these teams have subjected hundreds of thousands of travelers, including U.S. citizens, to questioning and detention at the border, and whether this activity comports with the Constitution.”

These teams, known as Tactical Terrorism Response Teams or “TTRTs,” operate largely in secret. But CBP has publicly admitted that the teams target individuals who are not on any government watchlist, including those the government has never identified as posing a security risk. Even more concerning, former CBP Commissioner and former acting Secretary of Homeland Security Kevin McAleenan has indicated that TTRT officers may target travelers based on their “instincts” or hunches.

CBP officers’ reliance on “instincts” creates the risk that these secretive teams are targeting travelers based on explicit or implicit biases. Biased targeting is unlawful profiling if officers detain, search, and/or question travelers on the basis of their race, religion, ethnicity, or national origin. It may also result in officers detaining and questioning travelers because of their speech or associations, which may be protected by the First Amendment. Finally, these teams’ activities raise due process and fairness concerns when information inappropriately gathered by them results in further government scrutiny, such as placement on a government watchlist.

“For too long, the government has acted as if it has carte blanche at the border. Today’s decision shows that CBP cannot simply walk into court and say the magic words to avoid accountability.” said Tarek Ismail, Associate Professor of Law at CUNY School of Law, where he is Counsel in the CLEAR Clinic. “Since they were created in 2016, TTRTs have quietly prevented thousands of visa-holding travelers from entering the U.S., and have subjected hundreds of thousands more to invasive questioning and long delays as they seek to reunite with loved ones, visit friends, or just come home. With today’s decision, we look forward to shedding more light on CBP’s secretive practices, especially in our work with communities CBP routinely targets.”