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