Featured, Features, Online — February 1, 2017 at 3:49 pm

Quis custodiet ipsos custodies?: Who Watches the Watchlisters?

Jerome H. Kahan*

Abstract

Not everyone knows that the federal government runs a secret terrorist watchlisting program that carries the names and other identifying information on known and suspected terrorists and that, if there is “reasonable suspicion,” also includes derogatory material about the associates and families of these entries. This program consists of four interrelated lists aimed at helping federal, state, and local authorities determine whether individuals they encounter might pose a threat to homeland security by trying to illegally enter the country, flee from domestic authorities, board aircraft when banned from doing so, obtain visas or passports when these require special investigations, or engage in suspicious activities noticed by authorities or reported by citizens. However, in the course of populating these lists, the program also sweeps up the names of innocent people without their knowledge who then experience adverse consequences as a result of being “blacklisted,” thus raising serious issues about the constitutionality of a process based upon the presumption of guilt until proven otherwise—the reverse of our how our criminal justice system works. Recent acquisition and publication of the 2013 Watchlisting Guidance by an online journal provided rare insight into how this watchlist operates and stimulated investigation into the workings of all the related watchlists. This article summarizes the nature and purpose of the terrorist watchlists, discusses the rules followed by agency screeners, explores the civil liberties implications of watchlisting, notes the links between gun controls and the watchlists, and identifies the need for oversight of the process. It offers conclusions about the efficacy of these lists and suggests ways that President Trump can improve them so they help capture terrorists without ensnaring innocent individuals, consistent with constitutional principles.

 

Introduction

What if you showed up at the airport with a ticket and went through the screening process without any problem, but at the last moment were denied boarding a commercial flight from Washington, D.C., to Seattle, Washington, with no explanation when you questioned authorities?[1] What if you were driving fifteen miles per hour over the speed limit and were pulled over by a policeman for what seemed to be a traffic violation, only to be told that you were a suspected terrorist and were then immediately taken to the police station for questioning?[2] What if a federal agent appeared at your door and took you into custody because you were supposedly an associate of a known terrorist, offering no further explanation?[3] These are not fictional scenarios, but rather real life vignettes of what could happen as a result of a secret watchlist program run by the federal government that collects and records information about individuals identified as being known terrorists or suspected of being involved in terrorist activities and can also include derogatory material about the associates and families of these entries.

Established by Presidential Directives, approved by the Attorney General, and implemented by the National Counterterrorism Center (NCTC) and the FBI, the watchlisting  program consists of four interrelated lists aimed at helping federal agencies and law enforcement authorities at all levels determine whether individuals they encounter might pose a threat to homeland security by illegally entering the country, fleeing from domestic authorities having being accused of committing a crime, or seemingly engaging in suspicious activities or planning to take dangerous actions noticed by authorities or reported by citizens.[4] However, the system has often been accused of failing to catch potentially dangerous individuals, while at the same time inadvertently vacuuming up data on thousands of innocent people and entering their names on a watchlist.[5] These unfortunate individuals did not know and may never find out if, why, or when this occurred, yet once blacklisted a person can run into unexplained difficulties—including unrevealed invasions of their constitutional freedoms—when trying to travel or to find or hold jobs.[6]

Recent acquisition and publication by The Intercept of a 166-page restricted copy of the 2013 Watchlisting Guidance triggered a furor in the press, the public, pundits, and civil liberties organizations by opening up a window into how this list operates and the workings of the overall watchlisting system.[7] This article summarizes the nature and purpose of the terrorist watchlists, discusses the rules that screeners follow when individuals are encountered, explores the civil liberties implications of watchlisting, notes the links between gun controls and the watchlists, and highlights the need for independent oversight. It offers conclusions about the efficacy of these lists, suggests ways these lists can fulfill their missions more openly and consistent with constitutional principles, and recommends a series of steps President Trump should take to improve the watchlisting process so it can work against terrorists and for the safety and well-being of the American people.

I. The Watchlisting System

One of the reasons the U.S. government failed to anticipate and thwart the 9/11 attacks was that “information on terrorist suspects was disorganized and poorly used” in part due to “the lack of an integrated terrorist watch list,” which “has long been described as a critical shortfall in homeland security and the war against Al Qaeda and other terrorist groups.”[8] This gap was not only recognized by Congress but also by President Bush in his 2002 National Strategy for Homeland Security when he pledged to “build and continually update a fully integrated, fully accessible terrorist watch list,” making the FBI responsible for integrating the dozen existing terrorist lists operated by multiple agencies.[9] No actions were taken to implement this pledge, however, until September 16, 2003, when a Presidential Directive established a Terrorist Screening Center (TSC) that would be run by the FBI and would create “a unified and comprehensive watchlist [that] all investigators, agents, and screeners” could quickly consult to help them detect and disrupt terrorist threats.[10]

Although such a consolidated Terrorist Watchlist was developed by 2004, uniform policies and procedures for managing and populating this list were not issued until TSC published an official Terrorist Watchlisting Guidance in July 2007, followed by two annual updated editions.[11] Unexpectedly, this process was severely criticized on Christmas Day 2009 when it was discovered that the name of a suspected terrorist, the so-called “underwear bomber,” was not on this list, thus preventing authorities from identifying him as a potential threat and barring him from boarding a commercial airline flight at Amsterdam airport bound for the United States—a serious system failure publicly acknowledged by the Secretary of Homeland Security that could have endangered hundreds of lives if not for the alert intervention of passengers and crew while the plane was airborne.[12] This failure led to an interagency review of the watchlisting system, which recommended improvements to policies, processes, and standardization mechanisms that were captured in the July 2010 version of the Watchlisting Guidance and, after further improvements, the 2013 edition obtained by The Intercept.[13] The 2013 Guidance provides the latest set of rules for managing the Terrorist Watchlist, including the process for placing individuals on this list and conditions that might lead to removal of names, and also offers guidelines for the No-Fly and Selectee Lists, as will be discussed later.

The Watchlisting Guidance defines a “known terrorist” as an individual who has: (1) been indicted for conducting terrorist acts; (2) committed acts “dangerous to human life, property, or infrastructure . . . intended to intimidate or coerce a civilian population; . . . [sought to] influence the policy of a government by intimidation or coercion; or [(3)]. . . [tried to] affect the conduct of a government by mass destruction, assassination, kidnapping, or hostage-taking.”[14] The Guidance also explains that an individual can be watchlisted if he or she supports or facilitates a terrorist by providing safe houses, funds, and/or false documentation; makes available weapons such as conventional arms or explosives and/or weapons of mass destruction; offers transportation and/or communications; or possibly administers training on how to undertake terrorist operations.[15] Mainly focused on international terrorists, the Watchlist also includes data provided by the FBI on known domestic terrorists who engage in the foregoing activities within the territorial jurisdiction of the United States.[16]

The Watchlisting Guidance defines a “suspected terrorist” as an individual “who is reasonably suspected to be, or has been, engaged in conduct constituting, in preparation for, in aid of, or related to terrorism and terrorist activities based on an articulable and reasonable suspicion.”[17] This is a weak standard that presumes an individual suspected of being a terrorist or having ties to terrorism is guilty until proven otherwise—the opposite of what is perhaps the most sacred principle in our criminal justice system, that is, the assumption that a defendant is innocent until proven guilty.[18] The Guidance further states that neither irrefutable evidence nor concrete facts are needed to meet the reasonable suspicion criteria, as long as careful attention is given to all the information about an individual’s possible terrorist-related activities, including “derogatory information” to determine whether the reasonable suspicion standard has been met.[19] In this connection, about forty percent of the total entries on the Terrorist Watchlist consist of people who have no affiliation with terrorist groups but are nonetheless classified as suspected terrorists under the broad reasonable suspicion standard.[20]

Finally, the Guidance explains that anyone can be placed on a watchlist if they are associated with a terrorist group, even if that group has not been designated as an official terrorist organization by the U.S. government. It also explains that information about a suspected terrorist’s immediate family and other associated individuals is maintained as long as there is derogatory information sufficient to meet the reasonable suspicion standard.[21] The Guidance also warns that care must be taken before any person is entered on the Terrorist Watchlist, since many activities individuals undertake may be unrelated to terrorism.

II. Four Key Watchlists

The four watchlists discussed below—TIDE, the Terrorist Watchlist, and the No-Fly and Selectee Lists—are shared with all relevant federal, state, and local intelligence and law enforcement authorities in the country, as well as with selected foreign entities to assist them in screening and potentially interdicting individuals who might be terrorists when they plan to travel, arrive or depart a country, or pose homeland security dangers.

A. TIDE

The Intelligence Reform and Terrorism Prevention Act (IRTPA) of 2004, which created NCTC, mandated that this center, among its many duties, establish and maintain a “central and shared knowledge bank on known and suspected terrorists and international terror.”[22] Activated in May 2005, this repository, officially termed the Terrorist Identities Datamart Environment (TIDE), is comprised of all records possessed by the U.S. government related to known and suspected terrorists, including those affiliated with Hamas, Hezbollah, ISIS, and other recognized international terrorist groups. TIDE also includes high profile domestic terrorists, including information on “what terrorists have done and how we have been tracking them.”[23] Individual entries include names and other associated materials as well as other “derogatory information,” with each record assigned specific classifications from unclassified to the highest levels available—causing the entire database to be classified Top Secret/Sensitive Compartmented Information (SCI).[24]

Since it began functioning, members of the Intelligence Community (IC), the Department of Homeland Security (DHS), the FBI, and other federal agencies have nominated thousands of individuals for inclusion in TIDE. The records of these nominations are forwarded to NCTC, where special groups of analysts with authorized access to all-source terrorist-related intelligence information determine whether or not these individuals merit inclusion on this database as known or suspected terrorists.[25] In addition to obtaining information from IC sources and data acquired from its close contacts with select foreign counterparts, the CIA reportedly uses “a previously unknown program, code-named Hydra, to secretly access databases maintained by foreign countries and extract data to add to the watchlists.”[26] Based on a daily review of nominations received, NCTC analysts create new TIDE records and enhance existing ones as appropriate, while also exporting a sensitive but unclassified subset of terrorist identifiers each day to the consolidated Terrorist Watchlist.

As of June 2016, it was estimated that TIDE contained records for about 1.5 million people, primarily from outside the United States, with the records on American citizens and lawful permanent residents accounting for only about 15,000 of the total.[27] Due to its high classification and extraordinary sensitivity, NCTC will neither publicly confirm nor deny whether someone’s name has been entered on TIDE.

B. Terrorist Watchlist

The Terrorist Watchlist discussed earlier, officially designated as  the “Terrorist Screening Database” (TSDB), was established on September 16, 2003, by Homeland Security Presidential Directive (HSPD)-6 to help government officials screen individuals they encounter by developing, integrating, and maintaining a database that contains complete, precise, and up-to-date information about individuals known or suspected to be terrorists.[28] As of June 2016, this Watchlist was estimated to contain over one million individual identifier records, primarily information about known or suspected terrorists living and operating overseas, with about 5,000 records containing names of U.S. citizens and legal permanent residents—a large number, but only a very small fraction of the total.[29]

As noted, TIDE is the main source for populating the Terrorist Watchlist with a subset of its unclassified listings. In turn, this Watchlist feeds information into a number of other lists, including the FBI’s special file on known and suspected terrorists, which is distributed to law enforcement authorities across the nation, the Consular Lookout and Support System (CLASS), a State Department list of people who might not be eligible for a visa or passport, and the TECS System operated by Customs and Border Protection to assist with the monitoring of border crossings. While sent to a range of government users, the Terrorist Watchlist is unclassified but sensitive and cannot be made available to the general public.[30]

TSC maintains and operates the nomination and distribution process for the Terrorist Watchlist, receiving proposed unclassified but sensitive nominations for inclusion on the list from the NCTC on a daily basis that are not only drawn from the larger TIDE database, but also from inputs received from other nominating agencies, such as CIA, DIA, DOS, and selected international entities.[31] The FBI is responsible only for domestic terrorism, including individuals associated with violent extremist organizations such as white supremacist movements. The Bureau’s Terrorist Review and Examination Center (TREX) sends nominations of known and suspected domestic terrorists with their identifiers directly to the TSC, based on investigative information in the Bureau’s databases and also from so-called “suspicious activity reports” (SARs) received by the FBI from alert citizens or cops on the beat.[32]

Whatever the origin, each submission to the TSC must meet the reasonable suspicion watchlisting standard, based on “articulable facts that objectively link a specific individual to terrorism or terrorist activities . . . [meaning] there must be an objective factual basis for the nominator to believe that the individual is a known or suspected terrorist”; in other words, not based upon a hunch, but a careful examination of the credibility of all sources and accounting for all other available information.[33] Only if the NCTC concludes that information qualifies under this standard will that data be sent to the TSC where this data will be further reviewed before being accepted for inclusion on the watchlist.

An individual can be placed on this Watchlist even if acquitted of a terrorism-related crime on the grounds that “conviction in U.S. courts requires evidence beyond a reasonable doubt, whereas watchlisting requires only a reasonable suspicion” of terrorist-related activities.[34] The vast majority of nominations submitted to the NCTC for entry on the Terrorist Watchlist are accepted and new identifier records established, though this can result in some individuals having multiple records with different information or classifications.[35]

A name can be removed from the Terrorist Watchlist if the nominating and validating agencies have credible reasons to believe that the individual is no longer engaging in terrorist-related activities or may have been mistakenly placed on this list. Unfortunately, innocent individuals, as well as known or suspected terrorists are not likely to know that their names are on the Terrorist Watchlist. Even if this is discovered, persons who have done no wrong face a difficult if not impossible redress procedure, which entails referring this complaint to TSC’s Traveler Redress Inquiry Program (TRIP) that is not known to be responsive to such concerns. Moreover, individuals who have a name similar to that of a known or suspected terrorist is already on the Terrorist Watchlist can result in innocent people being accused of involvement in terrorist activities—an “inconvenience” that TSC supposedly seeks to minimize.[36]

C. No-Fly List

The No-Fly List, also maintained by the TSC and classified sensitive, is primarily used by the Transportation Security Administration (TSA) to screen commercial air travelers at home and abroad to prevent known or suspected terrorists from flying into, out of, or within the United States, or at least to identify suspected terrorists who can be allowed to board a flight but will remain under surveillance.[37] Simply put, to be nominated for placement on the No-Fly List, an individual, regardless of her citizenship, must be seen as representing a threat to the safety of airlines and their passengers.[38] Of particular concern is the danger of terrorists seeking to hijack an aircraft and use it like a weapon or cause a mid-flight explosion. More generally, agencies can nominate individuals for the No-Fly List if they are operationally capable of posing a threat of committing an act of international terrorism abroad, but who do not meet the more specific other criteria.[39] Nominations for the No-Fly List require that nominated individuals reach a higher degree of plausible relationships to terrorism than it takes to get placed on the Terrorist Watchlist and are therefore closely scrutinized by a TSA person who works at TSC then given a thumbs up by a supervisor at the TSC if inclusion is warranted.

In recent years, the No-Fly List has experienced huge growth, with the TSC selecting names from the Terrorist Watchlist to be added to this list each evening, bringing the current number of entries to “about 81,000 names, with fewer than 1,000 U.S. persons.”[40] However, this is still only a very small fraction of the number of individuals on the terrorist watchlist.

Regarding airline security, each time an individual arrives at an airline ticket counter, that person’s name is checked to determine whether his or her name is on this list. If there is a match to that person’s name or to the same or similar name to someone on the No-Fly List, the individual could be detained for hours while being investigated and, if suspected of being a terrorist or associated with a terrorist or a terror group, not allowed to board at all.[41] Individuals placed on this list are not given official notification, and they often only discover this fact at the airport when they are denied boarding.[42] As with TIDE and the Terrorist Watchlist, it is government policy to neither confirm nor deny placement of an individual on the No-Fly List, keeping this information from both members of Congress and the public.[43]

Individuals who are denied travel on commercial air flights and assume this is because their name has been mistakenly placed on the No-Fly List can employ the latest version of the Traveler Redress Inquiry Program (TRIP), which provides individuals who have experienced difficulties with air travel or airport screening as well as when crossing U.S. borders a new redress process that is no longer “constitutionally deficient or otherwise improper.”[44] The current TRIP process represents a major improvement by triggering a review of the data on the No-Fly List that honestly seeks to determine whether and why an individual is on the list, and within a short period notifies the person in question about the results of this review, whether their name will be removed, or whether they must remain on the list for certain reasons. If this review shows no basis for that person’s name and identifiers to be on the list, this data would be removed and he or she will receive a letter to that effect. On the other hand, if the review determines that the individual needs to remain on the No-Fly List, the letter would confirm this status and in response to a request send a second letter that identifies “the specific criterion under which the individual has been placed on the No Fly List and will include an unclassified summary of information supporting the individual’s status, to the extent feasible, consistent with the national security and law enforcement interests at stake.”[45] While TRIP was improved in connection with No-Fly List issues, this was not the case for complaints relating to the Terrorist Watchlist, where the redress process remained flawed.

Finally, after the December 2009 “underwear bomber” episode, the Assistant to the President’s for Homeland Security and Counterterrorism was given the responsibility of temporarily placing an entire category of individuals whose names appear in TIDE or the Terrorist Watchlist onto the No-Fly List, assuming this proposal is approved by a panel of senior NSC officials.[46] The goal of this immediate Temporary Threat-Based upgrade (TBU) is to enable the government to rapidly prevent any known or suspicious terrorist who fits this classification from boarding airlines, but only as a precaution if there are credible intelligence reports indicating that a terrorist attack from members of the banned group was imminent.[47] However, the ability of a highly-placed executive to temporarily prevent an entire category of individuals from taking commercial flights to flee the country, supposedly after a few members of this category had committed a terrorist act, led to concerns that TBU could support profiling by barring an entire religious group or other categories of people from boarding international flights, especially since religious profiling via application of the TBU is inconsistent with Watchlisting Guidance and overall U.S. policy.[48] In May 2014, Judicial Watch validated the policy of no watchlisting based on religious profiling by obtaining a cache of modestly redacted DHS documents in response to a Freedom of Information (FOIA) request, including a recent Memorandum stating that “individuals could only be watchlisted if they were associated with a known or suspected terrorist, not based on their affiliation with  . . . [a religious] or any other non-terrorist-related organization.”[49]

D. Selectee List

A Secondary Security Screening Selection List, or Selectee List for short, also maintained by the TSC, is a subset of both the No-Fly List and the Terrorist Watchlist and identifies individuals who need to undergo additional questioning, inspection, and screening before being allowed to board flights to, from, or over U.S. territory.”[50] The decision to include a person on the No-Fly List or Selectee List must include “additional derogatory requirements” that go beyond criteria required for inclusion in the Terrorist Watchlist but, as the ACLU observes, the government has refused to disclose those requirements.[51] However, we do know that there are circumstances when an individual not on the No-Fly List can appear on the Selectee List. Unless they are subject to independent derogatory information, immediate family members of known or suspected terrorists are either ineligible or unsuitable for inclusion on the Selectee List—or the No-Fly List for that matter—regardless of whether they have met the criteria for inclusion on the other lists, as noted earlier. The Selectee List currently contains 28,000 records, of which less than 1,700 are U.S. citizens or permanent residents.[52]

The Expanded Selectee List (ESEL) includes records from the comprehensive Terrorist Watchlist that contain an individual’s full name and date of birth, but fail to meet the special criteria for placement on either the No-Fly or Selectee Lists.[53] As with the Selectee List, individuals on the ESEL must undergo enhanced screening by Transportation Security Officers prior to boarding an aircraft, but neither the reasons why a person is placed on the ESEL nor the differences in the screening procedures for this list compared to those for persons on the Selectee List have been divulged. The TSA is required to notify the TSC of encounters with all individuals on the ESEL as well as on the No-Fly and Selectee Lists.[54] It is unclear whether the new TRIP process applies to individuals on the ESEL or Selectee List.

III. Screening for Watchlisted Individuals

HSPD-11, issued in August 2004, sets forth comprehensive procedures for front-line screening agencies to employ when checking individuals against the Watchlist with the goal of “detecting, identifying, tracking, and interdicting people” that might pose a threat to homeland security as they try to illegally enter the country or board aircraft, obtain visas or passports that require special attention, or engage in suspicious activities noticed by authorities or reported by citizens.[55] To this end, the TSC sends the latest version of the Terrorist Watchlist “downstream” to all front-line federal screening agencies, including TSA, CBP, USIS, ICE, and USCG—all components of DHS—as well as to the  Drug Enforcement Administration (DEA), the Internal Revenue Service (IRS), the Departments of Defense (DoD) and State (DOS, and all overseas  diplomatic posts.[56] The Watchlist is also distributed by the TSC to law enforcement agencies at all levels across the nation for use when an individual is arrested, detained for questioning, or stopped for a traffic violation.[57] Required information to be obtained from an encountered individual includes names and aliases, dates and places of birth, fingerprints or other biometric data, passport information, home location, countries of origin and nationality, license plate numbers, employment data, email addresses, and phone numbers.[58]

After questioning an encountered individual, all data gathered are transferred to the TSC, where experts in the Terrorist Screening Operations Center (TSOC) assess whether information about a person encountered by a screener matches a Watchlist record. If there is a match, TSOC coordinates the appropriate operational response to be taken by the FBI and/or other agencies; that could include immediately arresting the individual, subjecting the individual to additional screening at an airport checkpoint, denying the person in question a visa application, or subjecting the individual to a low level of monitoring—depending upon the Handling Codes assigned to each record. These codes run from the highest and most dangerous Code 1, which designates individuals as known terrorists, to the lowest and least dangerous Code 4, which classifies individuals as possibly associated with a suspected terrorist.[59] Most of the individuals questioned were released because neither watchlist records nor the information obtained during the encounter justified taking further steps, though valuable material that might lead to discovery of a possible terrorist is often developed. All information collected through an encounter is either used to create a new record or added to a person’s existing file for further scrutiny by authorities. Usually, TSOC notifies all relevant users when a screening process identifies a known or suspected terrorist, but in some cases, when a police officer notifies TSC of an encounter that is matched with a Watchlist entry, the FBI and other government agencies will track that person without alerting law enforcement officers of the individual’s status, a so-called “silent hit.”[60]

IV. Challenges to Civil Liberties

Over the years, concerns have been expressed that the watchlisting process violates individuals’ civil liberties and due process rights, as well as that the practice lacks clear standards by which to determine who is placed in the various databases, does not notify persons that they have been placed on these lists, and results in ethnic, religious, economic, political, and racial discrimination. In short, the watchlisting system has been accused of stigmatizing hundreds of thousands of innocent people by using an overbroad “reasonable suspicion” standard that requires neither irrefutable evidence nor concrete facts for placing someone on a watchlist, without publicizing these criteria.[61]

A. Blacklisting Innocent People

TIDE and the Terrorist Watchlist have grown exponentially in recent years, as has the No-Fly List, causing a former senior FBI special agent to argue that the watchlisting system is “revving out of control.”[62] Indeed, as these lists have grown, they have become “more error-prone, unreliable, and increasingly applied in an arbitrary and discriminatory manner,” with the result that watchlist records are filled with inappropriate, inaccurate, or outdated data.[63] This can be attributed, at least in part, to the fact that assessments of watchlisting nominations are in the hands of busy NCTC analysts whose decisions are not independently vetted by higher level officials who might otherwise consult intelligence data and other pertinent information to determine whether there is enough specific and credible information to support these judgments.[64] Moreover, in naming individuals for inclusion on the Terrorist Watchlist, analysts rely predominantly on the subjective standard of reasonableness, based on the dubious assumption  that all nominations of known or suspected terrorists are by definition considered justified, unless NCTC has evidence to the contrary.[65] In essence, watchlisting individuals requires nominations to be “presumptively valid” reflecting grounds for reasonable opinion or belief—a standard that requires far less of a burden of proof than the need to prove guilt “beyond a reasonable doubt” as a key element of our criminal justice system. This results in a program that secretly blacklists people and then gives them “the impossible task of proving themselves innocent” of terrorist actions they have not committed.[66]

In response to these charges, government officials have repeatedly said there is a rigorous process for making sure no one is unfairly placed on any of the watchlists, claiming that any mistakes that do happen are corrected as soon as they are discovered.[67] This is quite an overstatement, given that the TSC conducts periodic “quality assurance reviews … to ensure that all . . . [watchlisted] records maintained are current, accurate, and thorough,” yet mistakes continue to be made.[68] Other officials reportedly admit that TIDE, for instance, has never operated perfectly, given its “fundamental design flaws that make the data difficult or even impossible to search [… and the fact that] there is no full proof way to ensure that only good data gets into the . . . system and unqualified data stays out”—so mistakes found in TIDE can trickle down into the Terrorist and No-Fly Lists.[69]

Considering the almost overwhelming amount of possible terrorist-related data collected on individuals, estimates suggest that the most accurate imaginable system would still generate on the order of “1 billion false alarms”—that is, emails, meetings, associations, phone calls, or items falsely tagged as terrorism-related—“for every real terrorist plot it uncovers.”[70] Making matters more frightening is the lack of an official procedure for discovering whether an individual has been placed on the highly classified TIDE roster or on the sensitive but unclassified Terrorist Watchlist.[71]

The 2013 Guidance calls for the Watchlist to be reviewed at least every two years or as needed, and also calls for all the watchlists to be periodically reviewed and audited to ensure that records are accurate, timely, consistent with anti-terrorism objectives, and purged of the names of innocent individuals.[72] In practice, however, efforts to rid watchlists of records judged to be outdated or obsolete have never kept up with the constant and growing ingestion of new names or identifier data for placement on the various lists. This phenomenon has led to watchlists that now contain massive numbers of records on innocent people who had been inadvertently placed on a list, many of whom, due to changed circumstances such as the availability of exculpatory evidence, should no longer be classified as suspected or actual terrorists. Additionally, one of the so-called “hidden costs” of terrorist watchlists is the high number of false positives caused by the growing number of records that should not have been retained, which in turn has the effect of swamping the data pertaining to individuals identified as known or suspected terrorists, thereby leading to more false positives in what can be characterized as a vicious circle.[73] In discussing this issue, the ACLU has argued that a focused watchlist with few false accusations “is not only better for civil liberties, but more likely to provide a security benefit” by catching known or suspected terrorists who might otherwise be lost in the maze of names on the currently inflated list of names.[74]

The rise in the number of innocent people falsely accused of being actual or potential terrorists and placed on watchlists has often led to serious consequences for the person in question, including ruining prospects for employment, unexplained audits by federal authorities, intrusive screening at points of entry into and egress from the United States, and being asked to provide all sorts of identifying evidence when encountered by law enforcement officials such as fingerprints and DNA samples. These and other adverse impacts on the privacy of individuals were reflected in the strong statement recently issued by a U.S. district judge that “[o]nce derogatory information is posted to the . . . [Terrorist Watchlist], it can propagate extensively through the government’s interlocking complex of databases, like a bad credit report that will never go away.”[75] There are even reports of “shadow” lists that continue to maintain the names and identifiers of people deemed as suspicious, even if their records are removed from one of the mainline watchlists.[76] As one commenter wryly put it: “Given that the information gleaned through this watchlisting process is shared with law enforcement throughout the land and the fact that concrete facts are not really necessary to get one’s name on the list, anyone could be in for a significant and unexpected surprise the next time that they are pulled over by a member of their local police force for a minor traffic infraction.”[77]

B. Violation of Civil liberties

The 2013 Guidance acknowledges that “watchlisting is not an exact science, […because] [T]here are inherent limitations in any primarily name based system and analytic judgments may differ regarding whether subjective criteria have been met.”[78] The Guidance goes on to say, “[G]iven these realities, the U.S. Government’s watchlisting process attempts to safeguard the American people from a terrorist attack while safeguarding privacy, civil rights and civil liberties.”[79] However, the ACLU has argued the watchlisting process is not only inconsistent with constitutional principles but also “unreliable and ineffective as a security measure . . . [leading to] a massive number of innocent people placed on the watchlists who have no connection to terror . . . [T]he false positives . . . [will soon outweigh] the numbers of those who are dangerous,” thereby swamping the system.[80]

In managing the watchlisting process, the TSC claims to be “dedicated to ensuring activities are conducted in a manner consistent with protecting privacy and civil liberties, [… not watchlisting individuals] based solely on race, ethnicity, national origin, religious affiliation, […or harming their First Amendment-protected activities, such as freedom of speech and the press as well as] “the right to peaceably assemble and to petition the government for a redress of grievances.”[81] In this connection, the ACLU Foundation of Southern California is suing USCIS for running the Controlled Application Review and Resolution (CARRP) program, a previously-secret effort that “directs agency officers to delay and ultimately deny the immigration benefits applications of applicants it has blacklisted, all without even telling these individuals that they were labeled threats to our nation, let alone giving them an opportunity to respond to the allegations.”[82]

As discussed earlier, until recently many innocent individuals banned from boarding a commercial flight presumably under the No-Fly List had great difficulty when following the redress procedures in finding out why they were placed on the list and seeking to get their names removed.[83] Now they can employ the new and improved TRIP in an effort to remove their names and associated records, a process that works relatively well in validating that  an individual was indeed wrongly placed on the No-Fly list and taking steps to fix this error.[84]  When it comes to the Terrorist Watchlist, however, individuals mistakenly recorded do not have a fair, effective, and prompt redress procedure.[85] To begin with, an innocent person must first find out that his or her name has been listed, which presents a formidable hurdle given the government’s policy of not informing individuals of their placement on the Watchlist. Many people go about their business without knowing they have been watchlisted, though individuals being subjected to surveillance and/or frequent questioning by law enforcement officers might guess that this might be the case. Other hints include denial of employment, difficulty in obtaining commercial or professional licenses, renewal of a passport, and/or delays or denials when applying for citizenship applications. Another way an innocent person might suspect that he or she has been watchlisted is to suddenly have to undergo a potentially lengthy investigation by the FBI for unspecified reasons but which entails multiple efforts to find evidence that the individual has ties to terrorism, including examination of the person’s family and associates for any connections they might have to known or suspected terrorists. Under certain circumstances, an FBI agent investigating a person might divulge the fact of that individual being watchlisted, with no details provided.[86]

If an innocent individual either discovers or suspects that he or she is on the Terrorist Watchlist, the only current recourse is to submit a form to the same redress program that handles No-Fly List issues. In this case, however, TSC is brought into the picture to work with the original nominating entity to determine whether the person’s name matches an individual listed in the Watchlist and, if so, assesses whether that person should remain on the list or be removed. This lengthy process attempts to be fair, but often leads to either controversial results or no final conclusion.

Meanwhile, the sizes of the various lists have exploded, notably the No-Fly List.[87] Administration officials argue that this exponential growth has not “choked the system” as critics claim, but rather have made it more effective by enabling analysts to have more data to analyze using sophisticated methods to uncover information and relationships that can lead to the prevention of terrorist attacks and the prosecution of potential perpetrators.[88] However, experts argue that the strategy of including a landslide of names on the watchlists has resulted in a “data glut,” making it more demanding, rather than less challenging, for the government to discover, investigate, and apprehend terrorists.[89]

V. Need for Oversight

Notwithstanding efforts by the DHS and DOJ Inspector Generals to monitor the  functioning of the Terrorist Watchlist, a 2012 GAO investigation of the 2010 Guidelines concluded there was no executive agency or other entity responsible and accountable for periodically assessing the accuracy of the nominating process, the credibility of procedures leading to decisions to enter a nomination into the system, the efficacy of the screening process, or determining if adjustments to agency programs are needed.[90] In its 2016 study, the ACLU concluded that “the current watchlisting system lacks adequate substantive oversight,” arguing that the Executive Branch can be said to “own” this system and thus cannot be expected to credibly and independently oversee this effort, despite claims to the contrary.

As if anticipating the results of the ACLU’s study referred to above, that organization issued a statement for the record at a 2007 Hearing before the House Homeland Security Committee  expressing concern that unless the legislative branch acts to overhaul the watchlisting process and the list itself, “[w]e will be stuck with a massive blacklist of mostly innocent persons that is hopelessly unreliable.”[91] In that same year, the Chairman of this Committee warned that “[t]he American people will support the watch list  . . . [only] if there is accountability . . . [and] trust . . . [that this enterprise] is being done right, not  . . . [instilling] fear that they are being monitored by Big Brother.”[92] Despite these warnings, Congress has failed to undertake the legislative actions needed to provide effective oversight that would ensure the watchlisting system does not ensnare innocent individuals as it seeks to meet its goal of recording essential information on known and suspected terrorists for use by enforcement authorities.

VI. Gun Control and Watchlisting

At the present time, “there is no . . . [legal] basis to automatically prohibit a person from possessing firearms or explosives because they appear on” any of the terrorist watchlists.[93] Though the phrase “No Fly–No Buy” is being used as a rallying cry for many legislators, bills proposed by gun control advocates in Congress are based on the proposition that not only names on the No-Fly List, but also those on the more comprehensive Terrorist Watchlist, should be barred from buying firearms.[94] As explained by the current Speaker of the House, “to allow someone who is on the terror watch list, who could be under investigation by the FBI, to purchase a weapon just doesn’t make sense.”[95] Others on the Hill have argued against these gun control advocates on the grounds that the watchlists are not only incomplete, but that they also include innocent people who might then mistakenly be denied the opportunity to buy guns.[96]

While all bills aimed at closing loopholes in gun purchasing and expanding background checks have failed thus far, these issues will continue to be heatedly debated in the Senate and the House. In the months prior to his election, Donald Trump, who welcomed support from the National Rifle Association, raised eyebrows by endorsing the policy of denying all types of guns to watchlisted individuals, and Mr. Trump will presumably work with the Republican-dominated Congress to implement the necessary legislation after taking office.[97]

VII. Conclusions

The federal government’s watchlisting system has developed “a life of its own,” with no external oversight, no true transparency, and no accountability about either the process of placing individuals on the various lists or how the screening process works in practice. There have even been reports of quotas being established for filling the various watchlists.[98] On the other hand, counterterrorism officials have recently described the watchlists as “a cornerstone of their efforts to detect possible terrorists before they can strike,” while guarding against improper listings of innocent individuals.[99]

A. Watchlisting System is Damaged

In March 2014, after an extensive investigation, the DOJ Inspector General (IG) reportedly found that “the FBI has made considerable progress in improving the accuracy and timeliness of the . . . terrorist watchlist,” but concluded that more needs to be done to ensure that this list was current and complete.[100] In this connection, the IG reportedly made a dozen recommendations, including requiring the TSC to “better document its actions during national security events, clarifying FBI information sharing policies to ensure they are consistent with those of the watchlist community, and improving the efficiency of the FBI’s watchlist nomination process for investigative and non-investigative subjects”—measures that were accepted by the Bureau with corrective action already underway.[101]

According to a well-known civil rights lawyer, approximately forty percent of the entries on the Terrorist Watchlist have no connection to a terrorist group yet are still branded as suspected terrorists due to the loose standards for watchlisting an individual.[102] Moreover, because the watchlist is not limited to known terrorists, an official can watchlist a person if there is “reasonable suspicion” to believe that the person is a suspected terrorist. In addition, watchlisting standards “are so low that the U.S. government’s guidelines specifically allow for a single, uncorroborated source of information—including a Facebook or Twitter post—to serve as the basis for placing you on its master watchlist.”[103] However, former officials who worked with the TSC reportedly acknowledged that while a single suspicious social media post can lead an individual to come to the attention of the FBI or other nominating agencies, “the full nominating process must be followed and the reasonable standard suspicion must be met before someone is placed on the watchlist.”[104]

In March 2014, the ACLU published a scathing criticism of the current watchlisting system, subtitled Unfair Process and Devastating Consequences, which pleaded that “Congress and the Obama administration must rein in what the Ninth Circuit Court of Appeals has called ‘a vast, multi-agency, counterterrorism bureaucracy that tracks hundreds of thousands of individuals’—a bureaucracy that remains secret and unaccountable to the public or the individuals that it targets for blacklisting.”[105] This study argued that we must ensure the system institutes stringent criteria for placing individuals on these lists, applies rigorous procedures for reviewing and removing incorrect entries, establishes guidelines that employ due process rather than the weak standards for inclusion currently in use, employs a credible process allowing individuals to question their inclusion on a watchlist, and reassesses whether watchlists should continue to carry the names of people who have passed away since terrorists often adopt identities of persons who have died.[106] Other critics have “blasted the effectiveness and reliability of the . . . [current] terrorist watch list system, asserting that too many people . . . are swept up by law enforcement agencies without proper vetting or due process—and that too many other . . . certifiable threats are left out.”[107]

A few years after the watchlisting program was initiated, the GAO concluded that “the government lacks an up-to-date strategy and implementation plan for optimizing use of the terrorist watch list . . . [that would] establish government wide screening priorities, assess progress toward policy goals and intended outcomes, consider factors related to privacy and civil liberties, ensure that any needed changes are implemented, and respond to issues that hinder effectiveness.”[108] Almost a decade later, these sensible recommendations remain relevant, with the proper balance still to be found between giving screening agencies the listings they need to discover terrorists or potential terrorists while keeping the names of innocent people off these lists.

B. For the new President to Fix

In his inaugural address, President Trump promised to fix those broken systems that are adversely affecting the functioning of our nation, though he did not cite the need to fix the terrorist watchlisting process.[109] Once this issue is brought to his attention, the new President should take the following actions during his first hundred days to remedy this problem:

  • Ask his Attorney General to propose changes in managing and employing terrorist watchlists that would make the processes more transparent and consistent with the constitutional rights of citizens, while retaining an updated database for screening individuals encountered by all front-line federal agencies and law enforcement authorities.
  • Order the NCTC to take appropriate steps to reduce the likelihood of innocent people being placed on a watchlist and ensure that families and associates of watchlisted individuals are included only if there is strong evidentiary material that ties them to terrorist activities.
  • Require the NCTC to cleanse the TIDE database of information that has become obsolete, irrelevant, or inaccurate, and require TSC to do the same by purging the Terrorist and No-Fly Lists.
  • Assign DHS the job of enacting an effective redress program for individuals who discover they have been erroneously placed on the Terrorist Watchlist, which would permit individuals to be exposed to and challenge the reasons for their inclusion and provide a transparent and objective adjudication process.
  • Seek legislation to the effect that watchlists must only be used for countering terrorism and not for unrelated reasons such as denial of employment, withholding professional licenses, or in other ways that would embarrass or hinder the functioning of listed individuals, but should be used in background checks for purchases of firearms in retail outlets and gun shows.

C. Establishing Effective Oversight

In addition to the foregoing actions, President Trump should take immediate steps to provide sorely needed oversight of the entire watchlisting system in terms of its effectiveness, efficiency, and respect for civil liberties. One such step should entail commissioning the Privacy and Civil Liberties Oversight Board (PCLOB)—an independent, bipartisan agency within the Executive Branch—to ensure that names and identifiers placed on the various watchlists to protect the nation from terrorism are balanced against the need to protect the constitutional rights and civil liberties of all individuals.[110] As an executive agency, however, the PCLOB is potentially subject to the sway of the White House. As an additional measure, therefore, the President should seek legislation to establish a Joint Select Oversight Committee on Watchlisting, modeled after the Senate and House Select Committees on Intelligence, to provide independent oversight of the watchlisting process.[111] Although a credible solution, this approach raises the philosophical question quis custodiet ipsos custodies: “who would watch the watchlisters”—in this case, members of the proposed Joint Watchlist Oversight Committee—to ensure they are acting responsibly in guarding the public’s interests?[112] On a practical level, this approach can work if members are chosen by the House and Senate leadership, endorsed by the White House, and rotated every few years.

D. Conclusion

Some civil liberties experts have reportedly concluded that “the watchlist system is broken […and beyond repair, because] in trying to watch too many people, we sometimes miss the glaring threats right in front of us, […while] government officials who worked closely with the watchlist system . . . say it is a deeply scrutinized process that is backed up by multiple levels of review and a constant concern for the balancing act of safeguarding civil liberties against protecting the American people.” [113] Cynics might argue that the government could do a better job in countering terrorism if it “introduced hidden microphones in every home, and tapped every conversation in every . . . car and train, and in every workplace—but the costs to privacy would be unacceptable.”[114] Readers of science fiction might argue that unless appropriate steps are taken, the watchlisting system might evolve into an Orwellian world that could turn the warning made almost fifteen years ago by the Chairman of a House Committee that “Big Brother” might be watching us into a reality rather than a literary allusion.[115]

Trashing the current watchlisting process would not be in the national security interest of the nation, since we do need to provide the identities of known and identified to screening agencies and law enforcement authorities to safeguard our borders and keep the nation as safe and possible. Information contained in the watchlists not only supports screening operations in the field, but is also systematically reviewed by NCTC analysts in an effort to “connect the dots” between supposedly unconnected data that can lead to the investigations and perhaps arrests of known or suspected terrorists and/or their associates. In the words of a U.S. counterterrorism official who did not want to be identified: “The watch list is created specifically to be one of the big dot-connectors in the counterterrorism effort—it’s among the most sophisticated systems the government has—and it’s proven itself to be effective.”[116]

If the benefits of terrorist watchlists are to be reaped in the future, we need a process that installs tight definitional and credible evidentiary standards of what is meant by known or suspected terrorists, keeps to a minimum the number of innocent people mistakenly listed, offers redress and review procedures based upon fairness and due process, and provides accurate and responsive information about watchlists to agencies that encounter individuals as part of their official duties. An improved process should classify the contents of watchlists only as needed to keep suspects off guard and be able to bring terrorists to justice through surprise encounters, while making available to the public as much information as possible about the objectives and operations of watchlisting—classifying material only as necessary to avoid telling actual or potential terrorists that we have them on our list.[117] Most of all, there needs to be an independent oversight entity with the task of aggressively checking on the operations of the watchlisting system to ensure it is conducted efficiently and effectively

In sum, the Executive Branch and Congress need to join forces in reigning in the bloated watchlisting bureaucracy, which reports mainly to itself, has no public accountability, hesitates to accept suggestions that could infringe on its freedom to blacklist individuals without even a nod at due process, sweeps up innocent individuals without periodically cleansing its lists of invalid entries, and is not subjected to any meaningful oversight. Without mincing words, it can be said that “a watchlist based on poor standards and secret processes raises major constitutional concerns, including the right to travel freely and not to be deprived of liberty without due process, […and] watchlists filled with records on innocent people not only threaten to ruin lives, but has the unintended consequences of diverting the attention of policy makers from real threats.”[118]

Once an improved process with independent oversight is in place that fixes these and other problems, citizens should feel comfortable that our government is finally maintaining watchlists that contain complete and current records on actual and potential terrorists, are classified only as far as necessary to identify and apprehend such individuals, and lead to a minimal number of mistakes that result in innocent people being watchlisted. In such a world, the watchlisting system will be valued, concerns of excessive governmental intrusion will be assuaged, and Kafkaesque fears of “Big Brother” will subside. Left for pundits, politicians, and policy-makers to discuss, however, is the outstanding philosophic question of “Who Watches the Watchlisters?”

 


* Jerome H. Kahan is an independent writer and analyst, having worked in and out of government for over forty years in the national security, arms control, and homeland security fields. At the State Department, Mr. Kahan held positions on the Policy Planning Staff, as Deputy Assistant Secretary with the Political-Military and Intelligence Bureaus, and as Politico-Military Counsellor in our Embassy in Turkey. Mr. Kahan has written and/or contributed to a number of books, published articles in a variety of journals, and taught for ten years as an Adjunct Professor in the School of Foreign Service at Georgetown University.

[1] Zara Stone, The Secret Airline Passenger Rights You Don’t Know About, The Hustler (Nov. 24, 2015), http://thehustle.co/the-secret-airline-passenger-rights-you-dont-know-about.

[2] Alice Wang, Yale Law Sch. Civil Liberties and Nat’l Security Clinic with the Am. Civil Liberties Union, Trapped in a Black Box: Growing Terrorism Watchlisting in Everyday Policing 24–27 (Apr. 2016). https://www.google.com/?gws_rd=ssl#q=trapped+in+a+black+box:+growing+terrorism+watchlisting+in+everyday+policing.

[3] Paula Mejia, Here’s How You End up on the U.S. Watchlist for Terrorists, Newsweek (July 25, 2014), http://www.newsweek.com/you-could-be-next-top-secret-rulebook-labeling-terrorists-leaked-261236.

[4] The White House, Homeland Security Presidential Directive/HSPD-11, Comprehensive Terrorist-Related Screening Procedures (Aug. 27, 2004), https://www.gpo.gov/fdsys/pkg/PPP-2004-book2/pdf/PPP-2004-book2-doc-pg1763.pdf.

[5] Brian Freskos, How the FBI’s Terrorist Watch List Works, The Trace (Jun. 29, 2016), https://www.thetrace.org/2016/06/fbi-terrorist-watch-list-guns/. See also Mackenzie Weinger, How the Terrorist Watchlist Works, The Cipher Brief (Oct. 3, 2016), https://www.thecipherbrief.com/article/exclusive/north-america/how-terrorist-watchlist-works-1089.

[6] Nick Wing, 7 Ways That You (Yes, You) Could End Up On A Terrorist Watch List, Huffington Post (July 25, 2014), http://www.huffingtonpost.com/2014/07/25/terrorist-watch-list_n_5617599.html; see also Spencer Ackerman, How the US’s terrorism watchlists work–and how you could end up on one, The Guardian (July 24, 2014), https://www.theguardian.com/world/2014/jul/24/us-terrorism-watchlist-work-no-fly-list.

[7] March 2013 Watchlisting Guidance, The Intercept (July 23, 2014), https://theintercept.com/document/2014/07/23/march-2013-watchlisting-guidance/ [hereinafter Guidance]. This document was reportedly obtained from an unnamed intelligence community source. See also Jeremy Scahill and Ryan Devereaux, Blacklisting: The Secret Government Rulebook For Labeling You a Terrorist, The Intercept (July 23, 2014), https://theintercept.com/2014/07/23/blacklisted/.

[8] Democratic Members of the House Select Comm. on Homeland Sec., 108th Cong., Keeping Terrorists Out of America by Unifying Terrorist Watch Lists: Ten Requirements for an Effective Terrorist Screening Center (Nov. 2003), https://www.hsdl.org/?view&did=445959. This issue was identified earlier that year in a report by the Government Accountability Office (GAO). U.S. Gov’t Accountability Office, GAO-03-322, Terrorist Watch Lists Should be Consolidated to Promote Better Integration and Sharing (Apr. 30, 2003).

[9] White House Office of Homeland Security, National Homeland Security Strategy 26 (2002).

[10] Fed. Bureau of Investigation, War on Terrorism: New Terrorist Screening Center Established (Sept. 16, 2003), https://archives.fbi.gov/archives/news/stories/2003/september/tsc091603.

[11] U.S. Dep’t of Justice Office of the Inspector Gen., Review of the Terrorist Screening Center, Audit Report 05-27 (Sept. 2007), https://oig.justice.gov/reports/FBI/a0741/final.pdf.

[12] Deborah Charles, System to keep air travel safe failed: Napolitano, Reuters (Dec. 28, 2009), http://www.reuters.com/article/us-security-airline-napolitano-idUSTRE5BQ0Z420091228. Authorities failed to find the culprit’s cleverly hidden explosives during the pre-boarding search process, which did not include electronic scanning that would have presumably been able to detect objects in his underwear. See U.S. Gov’t Accountability Office, GAO-12-476, Terrorist Watchlist: Routinely Assessing Impacts of Agency Actions since the December 25, 2009, Attempted Attack Could Help Inform Future Efforts (May 2012).

[13] See Fed. Bureau of Investigation, Memorandum from FBI Counterterrorism Front Office to all Field Offices: Counterterrorism Program Guidance/Watchlisting Administrative and Operational Guidance (Dec. 21, 2010) (providing updated version to the July 2010 Watchlisting Guidance); see also Guidance, supra note 7, at Appendix 11. For more on later updates of the 2010 Watchlist, see U.S. Dep’t of Justice Office of the Inspector Gen., Audit of the FBI’s Management of Terrorist Watchlist Nominations, ii, 25, note 162 (Mar. 2014). The 2013 Guidance reflects minor improvements from the 2010 version.

[14] Guidance, supra note 7, at 34.

[15] Id. at 8.

[16] Guidance, supra note 7, at 6. Legally, “territorial jurisdiction” means “[a]ny lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof, or any place purchased or otherwise acquired …by consent of the legislature of the State in which the same shall be, for the erection of a fort, magazine, arsenal, dockyard, or other needful building.” U.S. Dep’t of Justice, U.S. Attorney’s Manual § 664, 18 U.S.C. § 7, Section 7(3).

[17] Italics added. To clarify reasonable suspicion versus probable cause, see the following Supreme Court interpretations as summarized by Devallis Rutledge, Probable Cause and Reasonable Suspicion, Police Patrol (June 7, 2011): “Probable cause does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction.” (citing Adams v. Williams, 407 U.S. 143 (1972)); “proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place in the probable cause decision.” (citing Maryland v. Pringle, 540 U.S. 366 (2003)); “Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.” (citing Alabama v. White, 496 U.S. 325 (1990)).

18   See Presumption of Innocence, Nolo’s Plain English Law Dictionary 331 (Gerald N. Hill and Kathleen Thompson Hill, eds., 1st ed., 2009). See also Boz Tchividjian, Innocent until proven guilty: What does this really mean?, Religion News Serv. (Jan. 16, 2015) http://religionnews.com/2015/01/16/innocent-proven-guilty-really-mean.

[19] Particularized derogatory information demonstrates with specificity the nature of an individual’s or group’s association with terrorism and/or terrorist activities. For example, “subject x provides false travel documentation for al-Qaida operatives” is specific, whereas “subject y is a supporter,” standing alone, is not considered particularized. See Guidance, supra note 7, at 38.

[20] Tim Cushing, Nearly 40% Of Those On The Government’s Terrorist Watchlist Have ‘No Affiliation With Recognized Terrorism Groups’, Techdirt (Aug. 5, 2014), https://www.techdirt.com/articles/20140805/11295828116/nearly-40-those-governments-terrorist-watchlist-have-no-affiliation-with-recognized-terrorism-groups.shtml. While the total number of entries on this list has almost doubled since this article was written, the proportions have roughly stayed the same. See Rob Port, You Cannot Deny People Their Rights Because You Think They Might Be Terrorists, Say Anything (June 15, 2016), https://www.sayanythingblog.com/entry/cannot-deny-people-rights-think-might-terrorist/#authorInfo (referring to the ACLU’s description of these watch lists as “virtually standardless” and statement that around forty percent of the people on the lists have “no recognized terrorist group affiliation”).

[21] Guidance, supra note 7, at 33, 13.

[22] Intelligence Reform and Terrorism Prevention Act § 1021(D)(6) (2004). See also National Counterterrorism Center: Terrorist Identities Datamart Environment (TIDE), What is TIDE? (June 30, 2016), https://www.nctc.gov/docs/tide_fact_sheet.pdf; Richard A. Best Jr., Cong. Research Serv., The National Counterterrorism Center (NCTC): Responsibilities and Potential Congressional Concerns (Dec. 19, 2011), https://fas.org/sgp/crs/intel/R41022.pdf.

[23] David Inserra, The Terrorist Watch List, Explained, The Daily Signal (June 14, 2016), http://dailysignal.com/2016/06/14/the-terrorist-watchlist-explained. “A data mart is a subject-oriented archive that stores data and uses the retrieved set of information to assist and support the requirements involved within a particular business function or department.” Data Mart, Techopedia, https://www.techopedia.com/definition/134/data-mart.

[24] Sensitive Compartmented Information (SCI) encompasses such sensitive information as intelligence sources or methods and names of clandestine agents. See John Holst, What is Sensitive Compartmented Information (SCI), Clearance.Jobs (Mar. 9, 2014), https://news.clearancejobs.com/2014/03/09/what-is-sensitive-compartmented-information/.

[25]  Safeguarding Privacy and Civil Liberties While Keeping our Skies Safe, hearing before the Subcomm. on Transportation Sec. of the H. Homeland Sec. Comm., 113th Cong. (Sept. 18, 2014) (statement of Christopher M. Piehota, Dir., Terrorist Screening Center).

[26] Jeremy Scahill and Ryan Devereaux, Barack Obama’s Secret Terrorist-Tracking System, by the Numbers, The Intercept  (Aug. 5, 2014), https://theintercept.com/2014/08/05/watch-commander.

[27] Chris White, Details of FBI Watch Lists Revealed Including Number of Americans, Lawnewz (June 21, 2016), http://lawnewz.com/video/details-of-fbi-watch-lists-revealed-including-number-of-americans-included/.

[28] Homeland Security Presidential Directive/HSPD-6, Directive on Integration and Use of Screening Information to Protect Against Terrorism (Sept. 16, 2003), https://www.gpo.gov/fdsys/pkg/PPP-2003-book2/pdf/PPP-2003-book2-doc-pg1174.pdf. HSPD-6 states that it is U.S. policy to “develop, integrate, and maintain thorough, accurate, and current information about individuals known or appropriately suspected to be or have been engaged in conduct constituting, in preparation for, in aid of, or related to terrorism . . . [and] use that information as appropriate and to the full extent permitted by law to support . . . [governmental,] diplomatic, military, intelligence, and law enforcement screening processes.” The primary government screening agencies are the Transportation Security Agency (TSA), the Customs and Border Patrol (CBP), the Immigration and Customs Enforcement (ICE), and the Department of State (DOS).

[29] White, supra note 26.

[30] It is officially marked Unclassified, For Official Use Only (FOUO)/Sensitive Security Information, with the additional caveat that access is limited to users with a “need to know.”

[31] In fact, names on the Terrorist Watchlist are said to be added and subtracted daily. About the Terrorist Screening Center, Fed. Bureau of Investigation (last visited Jan. 17, 2017), https://www.fbi.gov/about/leadership-and-structure/national-security-branch/tsc.

[32] Frontline law enforcement personnel as well as alert citizens can make SARs available to their local offices if they observe activities “reasonably indicative of preoperational planning associated with terrorism or other criminal activity.” See About the NSI, Nationwide SAR Initiative (last visited Jan. 17, 2017), https://nsi.ncirc.gov/default.aspx; see also Jerome. H. Kahan, Suspicious Activity Reporting – A Job for Everyone, Domestic Prep (Aug. 10, 2016), https://www.domesticpreparedness.com/preparedness/suspicious-activity-reporting-a-job-for-everyone/.

[33] Guidance, supra note 7, at 4, n.2, 7. The difficult to decipher explanation states: “To meet the REASONABLE SUSPICION standard, the NOMINATOR, based on the totality of the circumstances, must rely upon articulable intelligence or information which, taken together with rational inferences from those facts, reasonably warrants a determination that an individual is known or suspected to be or has been knowingly engaged in conduct constituting, in preparation for, in aid of, or related to TERRORISM and/or TERRORIST ACTIVITIES.” Id. at 32. “At the very least, it takes at least one source of credible and reliable information tying an individual to terrorism or terrorist- activities for the reasonable suspicion standard to be met. A more stringent process is needed when a U.S. citizen or permanent resident is nominated for inclusion on the Watchlist, including use of multiple sources of known reliability, review by the nominating agency’s legal counsel as well as the NCTC, and notifying the FBI of these nominations.” Id. at 18.

[34] Id. at 15. The Department of Justice’s official standard prohibits “the collection, maintenance, use, and dissemination” of terrorist-related intelligence information, unless there is reasonable suspicion of potentially prosecutable activities.” See Jerome H. Kahan, Protecting Civil Liberties for Suspicious Activity Reports, Domestic Prep (Oct. 19, 2016), https://www.domesticpreparedness.com/commentary/protecting-civil-liberties-for-suspicious-activity-reports/ (emphasis added).

[35] U.S. Dep’t of Justice Office of the Inspector Gen., The Federal Bureau of Investigation’s Terrorist Watchlist Nomination Practices, Audit Report 09-25 (May 2009). “Under certain exigent operational circumstances, individual watchlist status determinations can be made by the Director of the TSC, in accordance with the relevant criteria contained in the Watchlisting Guidance, with this information made available to relevant nominating agencies and screeners.” Guidance, supra note 7, at 36.

[36] Redress difficulties and same names are among the many issues regarding the Watchlist were discussed by Rick Kopel, Principal Deputy Director, Terrorist Screening Center, Federal Bureau of Investigation, in his statement before the House Subcommittee on Transportation Security and Infrastructure development, on September 9, 2008, available at https://archives.fbi.gov/archives/news/testimony/the-terrorist-screening-database-and-watchlisting-process.

[37] U.S. Dep’t of Homeland Sec., Office of the Inspector Gen., Role of the No Fly and Selectee Lists in Securing Commercial Aviation (Redacted) (July 20, 2009), https://www.oig.dhs.gov/assets/Mgmt/OIGr_09-64_Jul09.pdf [hereinafter DHS/OIG 2009 Report].

[38] The Guidance states there must be a “threat of committing an act of international or domestic terrorism with respect to an aircraft (including a threat of air piracy, or a threat to airline, passenger, or civil aviation)” or a threat to the security of any “official personnel and facilities abroad, including embassies, consulates and missions, military installations and all forms of U.S. owned or leased aircraft or ships, and commercial or entertainment facilities visited by U.S. citizens abroad.” Guidance, supra note 7, at 50.

[39] Piehota, supra note 24. Known or suspected terrorists are operationally capable if they are assessed by credible intelligence as reasonably appearing to have the “ability, knowledge, opportunity, and intent or is actively seeking the opportunity to engage in a violent act of terrorism . . . acting individually or in concert with others.” Guidance, supra note 7, at 34 (emphasis added). For legal aspects of the No-Fly List, see How Does the U.S. No Fly List Work?, HG.org, http://www.hg.org/article.asp?id=3174.

[40] Stephen Dinan, FBI no-fly list revealed: 81,000 names, but fewer than 1,000 are American, Wash. Times (June 20, 2016), http://www.washingtontimes.com/news/2016/jun/20/fbi-no-fly-list-revealed-81k-names-fewer-1k-us/. In addition to the TSA proposing names to be entered on the No-Fly List, its growth may be due to the fact that this list is used by the U.S. Coast Guard to monitor attempts by unwanted individuals to enter the country by sea, and also as part of the TECS system, noted earlier, which is the main system used by the Border Patrol to determine the admissibility of persons seeking to cross our border, consistent with that agency’s “anti-terrorism and law enforcement” mission. See U.S. Dep’t of Homeland Sec., DHS/CBP/PIA-009(a), Privacy Impact Assessment Update for the No-Fly List has doubled in the past yearTECS System: CBP Primary and Secondary Processing (TECS) National SAR Initiative (Aug. 5, 2011). Memoranda of Information Received (MOIRs) are produced for each encounter and submitted “for review, consideration, and nomination as Suspicious Activity Reports (SARs) for the DHS Information Sharing Environment (ISE) – SAR Initiative.” Id. at 3.

[41] Steve Kroft, 60 Minutes: Unlikely Terrorists On No Fly List (CBS television broadcast, June 7, 2007).

[42] Sid Lipsey, 8 ways you can end up on the no-fly list, Yahoo Travel (Sept. 9, 2015), http://www.foxnews.com/travel/2015/09/09/8-ways-can-end-up-on-no-fly-list.html.

[43] See Scahill, supra note 7.

[44] TSA regulations prohibit U.S.-flagged air carriers and foreign flagged air carriers from transporting No-Fly Listed individuals on regulated commercial flights, including all flights operated by U.S. air carriers and all flights operated by foreign air carriers to, from, or over the United States. However, in certain circumstances, the U.S. Government may grant a One-Time Waiver (OTW) to an air carrier that permits the carrier to transport an individual on a specified itinerary under controlled conditions. In some cases, individuals on the No-Fly List have been stranded abroad and even detained by a foreign government when Embassy officials confiscate their passports. See Jared P. Cole, Cong. Research Serv., Terrorist Databases and the No Fly List: Procedural Due Process and Hurdles to Litigation (Apr. 2, 2015), https://fas.org/sgp/crs/homesec/R43730.pdf. President Trump’s recent, controversial Executive Order on immigration, inter alia, “calls for a review into suspending the Visa Interview Waiver Program, which allows travelers from 38 countries—including close allies—to renew travel authorizations without an in-person interview, […and] also calls for implementing “a uniform screening standard and procedure for assessing whether or not an […immigration applicant] has the intent to commit criminal or terrorist acts after entering the United States.” CNN News, Full text of Trump’s executive order on 7-nation ban, refugee suspension, CNN Politics (Jan. 28, 2017), http://www.cnn.com/2017/01/28/politics/text-of-trump-executive-order-nation-ban-refugees/.

[46] Guidance, supra note 7, at 16. In examining the TBU, a legal expert wrote that the Watchlisting Guidance “does not provide examples of either the kind of threat that can justify a group-based departure from the reasonable suspicion requirement or the characteristics by which such groups can be defined …. No public information indicates whether, or how often, the government has made such categorical additions since the [underwear bomber] incident.” Shirin Sinnar, Essay: Rule of Law Tropes in National Security, 129 Harv. L. Rev. 1566, 1594–95 (Feb. 2016).

[47] Justin O’Connell, How and Why You Get on a TSA Watch List, Dollar Vigilante (July 30, 2014), https://dollarvigilante.com/blog/2014/07/30/how-and-why-you-get-on-a-tsa-watch-list.html. Once a TBU is approved, it can last for 30 days and can be renewed until the threat expires. However, as the Guidance states: “When necessitated by exigent circumstances, and where there is current and credible intelligence information or a particular threat stream that indicates a certain category of individuals may… conduct an act of domestic or international Terrorism, the ‘Appropriate Official’ may direct the TSC and NCTC to place categories of individuals from TIDE or TSDB on the No Fly List […before written] concurrence is obtained from the [senior NSC Committee] . . . If such concurrence is not obtained within 72 hours, individuals placed on the No Fly List due to the TBU will have their names removed.” See Guidance, supra note 7, at 26.

[48] The 2013 Guidance categorically prohibits watchlisting of individuals on the basis of racial profiling. See Guidance, supra note 7, at 6. The Guidance does not indicate what categories of people can be subjected to TBU, but notes that “American citizens and green card holders are subject to such upgrades.” See Scahill, supra note 7. In 2014, the Attorney General issued a wider ban that banned profiling “on the basis of religion, national origin, gender, sexual orientation and gender identity, […but included exemptions for CBP agents and TSA screeners given] the unique nature of border and transportation security as compared to traditional law enforcement.” Eric Tucker, Assoc. Press, White House issues guidelines to ban racial and religious profiling, at PBS Newshour (Dec. 8, 2014), http://www.pbs.org/newshour/rundown/white-house-issues-guidelines-ban-racial-religious-profiling/.

[49] Susan Stellin, Who Is Watching the Watch Lists? N.Y. Times (Nov. 30, 2013), http://www.nytimes.com/2013/12/01/sunday-review/who-is-watching-the-watch-lists.html; see also Guidance, supra note 7, at 7. Other documents revealed that the Obama administration had scrubbed the names of almost 1,000 foreign nationals from the Watchlist, mostly of the Muslim faith, as part of a so-called “hands off” list that allowed individuals who had formerly been banned from entering the U.S. because of suspected terrorist ties to enter the country in what turned out to be a misguided effort to protect the civil rights of suspected individuals. See Judicial Watch, Homeland Security Records Reveal Officials Ordered Terrorist Watch List Scrubbed (Mar. 1, 2016), http://www.judicialwatch.org/press-room/press-releases/judicial-watch-homeland-security-records-reveal-officials-ordered-terrorist-watch-list-scrubbed/. When discovered, this secret scrubbing action led to charges that had this data been retained, authorities might have had some warning of the brutal attack in San Bernardino on December 2, 2015 by a married couple with radical extremist beliefs—a false accusation as neither of the perpetrators were ever placed on a watchlist. Kerry Picket, San Bernardino Shooting Suspects Not On Terrorist Watch List, Daily Caller (Apr. 12, 2015), http://dailycaller.com/2015/12/04/san-bernardino-shooting-suspect-not-on-terrorist-watch-list/.

[50] Travelers with “SSSS” printed on their boarding passes, for reasons not explained, must undergo an additional level of scrutiny at airports and borders, such as a strip searches or extended interviews, based on criteria that have not been made public but might include passengers with one-way reservations or individuals paying in cash for their tickets. Wang, supra note 2, at 3. The 2009 DHS/OIG Report referred to earlier explains that the Homeland Security Council recently “loosened the criteria to allow for inclusion of more individuals on the No-Fly list and the TSC’s Policy Board Working Group followed suit with new implementation guidance as of June 2008.” See DHS/OIG 2009 Report, supra note 35.

[51] Wang, supra note 2, at 5

[52] See White, supra note 26.

[53] Guidance, supra note 7, at 35.

[54] Id. at 36

[55] See supra note 4.

[56] U.S. Dep’t of Justice, Office of the Inspector Gen., Follow-up Audit of the Terrorist Screening Center, Audit Report 07-41 (Sept. 2007), https://oig.justice.gov/reports/FBI/a0741/final.pdf.

[57] Donna A. Bucella, The Terrorist Screening Center, The Police Chief Mag., at 22–24 (Aug. 2006). An encounter means that “during their normal job duties (e.g., traffic stops, checking of airplane manifests … or evaluating an application for a U.S. passport or visa),” law enforcement officials might come across an individual who could be a known or suspected terrorist. See Ten Requirements for an Effective Terrorist Screening Center, supra note 7, at 49–50 n.10. In addition, the Watchlist is made available to the FBI’s National Crime Information Center (NCIC), which maintains “a computerized index of criminal justice information (i.e., criminal record history information, fugitives, stolen properties, missing persons)…available […round the clock] to Federal, state, and local law enforcement and other criminal justice agencies” when encountering suspected individuals. National Crime Info. Ctr., Criminal Justice Information Services Division, Fed. Am. Scientists (June 2, 2008), https://fas.org/irp/agency/doj/fbi/is/ncic.htm.

[58] See HSPD-6, supra note 27.

[59] U.S. Dep’t of Justice Office of the Inspector General, Review of the Terrorist Screening Center, Audit Report 05-27 (June 2005). A disproportionally greater number of individuals are assigned the less threatening lower code numbers due to the TSC policy of erring on the side of caution by watchlisting individuals with even a slight connection to terrorism as long as certain minimum criteria was met, such as at least part of an entire name and an additional identifier such as birth date. U.S. Gov’t Accountability Office, GAO-08-110, Terrorist Watch List Screening: Opportunities Exist to Enhance Management Oversight, Reduce Vulnerabilities in Agency Screening Processes, and Expand Use of the List (Oct. 2007). See also Wang, supra note 2, at 24–26.

[60] Wang, supra note 2, at 2. Citing this ACLU Report, O’Leary explained: “FBI documents from 2009 showed the use of the ‘silent hit’ system became increasingly widespread, and such routine use underscores that the KST File [known or suspected terrorist] is principally a domestic intelligence-gathering tool.” Mary O’Leary, Yale Law School clinic, ACLU question growth of domestic ‘watchlist’, The Register Citizen (Apr. 18, 2016), http://www.registercitizen.com/article/RC/20160418/NEWS/160419605.

[61] Am. Civil Liberties Union, U.S. Government Watchlisting: Unfair Process and Devastating Consequences (Mar. 2014),  https://www.aclu.org/sites/default/files/assets/watchlist_briefing_paper_v3.pdf.

[62] Scahill, supra note 7.          

[63] Hina Shamsi & Chris Anders, Am. Civil Liberties Union, The Use of Error-Prone and Unfair Watchlists Is Not the Way to Regulate Guns in America (June 20, 2016), https://www.aclu.org/blog/washington-markup/use-error-prone-and-unfair-watchlists-not-way-regulate-guns-america. This discussion applies with equal force to issues concerning terror watchlists.

[65] See supra note 34; see also Collins Dictionary of Law (W.J. Stewart, ed., 2006).

[66] Kim Zetter, How Does the FBI Watch List Work? And Could It Have Prevented Orlando?, Wired (June 17, 2016), https://www.wired.com/2016/06/fbi-watch-list-prevented-orlando-heres-works/. Using the watchlisting criteria, for example, an individual who is not a known or suspected terrorist could still end up on the TIDE database if the NCTC concludes this person raises “reasonable suspicion” because the individual knows someone who might be acting like a terrorist, if somebody else thinks that person poses a potential terror threat, or as a result of terrorist-related information that individual has posted on Facebook or Twitter.  Guidance, supra note 7, at 32.

[67] Sinnar, supra note 45, at 1584.

[68] Fed. Bureau of Investigation, supra note 26. Unbelievably, according to an IG investigation in August of last year, dozens of DHS employees who have been vetted and given security clearances turn out to be watchlisted. Tori Bedford, Congressman Lynch: 72 Department of Homeland Security Employees On Terrorist Watchlist, WGBH News (Dec.1, 2015), http://news.wgbh.org/people/tori-bedford.

[69] Terror Tuesday: The nerve center of the ‘disposition matrix,’ PrivacySOS (Oct. 30, 2012), http://archive.privacysos.org/node/863 (including comment from August 21, 2008 letter sent by Rep. Brad Miller, Chairman of House Subcommittee on Investigations and Oversight, Committee on Science and Technology, to the IG of the ODNI on how “the TIDE database is suffering from serious, long-standing technical problems . . . .”).

[70] Rachel Levinson-Waldman, Brennan Ctr. for Just., What the Government Does with Americans’ Data 17–18 (2013), https://www.brennancenter.org/sites/default/files/publications/What%20Govt%20Does%20with%20Data%20100813.pdf.

[71] Of course, if a person is stopped from boarding an aircraft for no apparent reason, the new redress procedures, discussed earlier, can expose whether that individual is on the No-Fly List.

[72] Guidance, supra note 7, at 29, 46.

[73] Anya Bernstein, The Hidden Costs of Terrorist Watchlists, 61 Buff. L. Rev. 461 (2013). A false positive “is a test result that is incorrect because […it indicates] a condition or finding that does not exist.” False-positive, Dictionary.com (last visited Jan. 17, 2017), http://www.dictionary.com/browse/false-positive.

[74] Am. Civil Liberties Union, The Four Biggest Problems with the “Secure Flight” Airline Security Program (last visited Jan. 17, 2017), https://www.aclu.org/other/four-biggest-problems-secure-flight-airline-security-program. This includes “list bloat,” which is bad for security as well as for liberty. Id.

[75] Nicole Flatow, It Took 11,000 Hours of Legal Work to Clear an Innocent Woman Placed on the No-Fly List, Think Progress, at 36 (Feb. 10, 2014), https://thinkprogress.org/it-took-11-000-hours-of-legal-work-to-clear-an-innocent-woman-placed-on-the-no-fly-list-9dfdfb35d072#.xi1m003dc.

[76] The Director of the ACLU of Massachusett’s Technology for Liberty Project, Kade Crockford, mentioned the existence of a parallel “shadow” legal system. See Kade Crockford, The FBI Says it Can’t Disclose its Records Because then the Public Would Know how the Bureau Works, Am. Civil Liberties Union (Feb. 2, 2016),  https://www.aclu.org/blog/speak-freely/fbi-says-it-cant-disclose-its-records-because-then-public-would-know-how-bureau?utm_content=buffera5328&utm_medium=social&utm_source=twitter.com&utm_campaign=buffer.

The existence of a parallel “shadow list” was also mentioned by Jeremy Scahill in interviews. See “Jeremy Scahill: Leaked U.S. Terrorist Watchlist Rulebook Reveals ‘Global Stop and Frisk Program,’” Democracy Now (July 29, 2014), https://www.democracynow.org/2014/7/29/jeremy_scahill_leaked_us_terrorist_watchlist.

[77]America’s Terrorist Watchlist, Viable Opposition (Sept. 20, 2016), http://viableopposition.blogspot.com/2016/09/americas-terrorist-watchlist.html.

[78] Guidance, supra note 7, at 15.

[79] Id. On this point, Timothy Healy, former TSC Director, reportedly said that the need to “balance civil liberties against protecting the American people” is the biggest challenge facing that organization and essential to an effective counterterrorism program. See Weinger, supra note 5.

[80] The Progress and Pitfalls of the Terrorist Watch List: Hearing Before the H. Homeland Security Comm., 110th Cong. (Nov. 8, 2007) (statement of Timothy Sparapani et al, Am. Civil Liberties Union), https://www.aclu.org/files/pdfs/natsec/watchlist_statement_11_8_2007.pdf [hereinafter Sparapani-ACLU Statement]. See also What does the government consider “protected” first amendment activities?, EMPTYWHEEL (July 17, 2013), https://www.emptywheel.net/2013/07/17/what-does-the-government-consider-protected-first-amendment-activities/.

[81] TSC’s Role in the Interagency Watchlisting and Screening Process, hearing before the House Subcomm. on Transportation Security: Hearing Before H. Subcomm. on Transportation Security of the H. Homeland Security Comm., 113th Cong. (Sept. 18, 2014) (statement of Christopher M. Piehota, Dir., Terrorist Screening Center).

[82] Jennie Pasquarella, Muslims Need Not Apply: How USCIS Secretly Mandates the Discriminatory Delay and Denial of Citizenship and Immigration Benefits to Aspiring Americans, Am. Civil Liberties Union of S. Cal. (Aug. 2013), https://www.lccr.com/wp-content/uploads/MUSLIMS_NEED_NOT_APPLY_LCCR_ACLU_SoCal_Report.pdf.

[83] See supra note 43.

[84] Paul Rosenzweig, Changes in the No-Fly List Process and Judicial Review, Lawfare (Nov. 6, 2015), https://www.lawfareblog.com/changes-no-fly-list-process-and-judicial-review. See also Safeguarding Privacy and Civil Liberties While Keeping our Skies Safe: HearingBefore H. Subcomm. on Transportation Sec. of the H. Homeland Sec. Comm., 113th Cong. (Sept. 18, 2014) (statement of Christopher M. Piehota, Dir., Terrorist Screening Center).

[85] Evan Van Simon,  How ‘the Terrorist Watch List’ Works, ABC News (June 17, 2016), http://abcnews.go.com/US/terrorist-watch-list-works/story?id=39931316. In September 2007 a group of federal agencies signed a Memorandum of Understanding on Terrorist Watchlist Redress Procedures that “standardizes preexisting inter-agency watchlist redress procedures allowing individuals an opportunity to receive a timely, fair and accurate review of their case.” Fed. Bureau of Investigation, Fact Sheet: Watchlist Redress Memorandum of Understanding (Oct. 24, 2007), https://www.fbi.gov/about/leadership-and-structure/national-security-branch/tsc/tsc-watchlist-redress-mou.

[86] See Ctr for Constitutional Rights, If an Agent Knocks: Federal Investigators and Your Rights (last updated Sept. 25, 2009), https://ccrjustice.org/if-agent-knocks-booklet.

[87] Jeremy Scahill, Leaked U.S. Terrorist Watchlist Rulebook Reveals ‘Global Stop and Frisk Program,’ Democracy Now (July 2, 2014), https://www.democracynow.org/2014/7/29/jeremy_scahill_leaked_us_terrorist_watchlist. In this interview, Scahill, who has delved deeply into the watchlisting process, said that the No-Fly List “reached its highest point under President Obama.” Id.

[88] Jerry Markon, Terror watch lists have grown dramatically since 9/11, Wash. Post (June 17, 2016).

[89] Katie Rucke, ‘Startling’ Number Of Americans Are On Terrorist Watchlist, MintPress News (July 23, 2014), http://www.mintpressnews.com/startling-number-of-americans-are-on-terrorist-watchlist/194356/.

[90] U.S. Gov’t Accountability Office, GAO-12-476, TERRORIST WATCHLIST: Routinely Assessing Impacts of Agency Actions since the December 25, 2009, Attempted Attack Could Help Inform Future Efforts (May 2012).

[91] See Sparapani-ACLU Statement, supra note 80.

[92] The Progress and Pitfalls of the Terrorist Watchlist: Hearing Before the H. Comm. on Homeland Security, 110th Cong. (Nov. 8, 2007) (statement of Bernie Thompson, Chairman of Comm. on Homeland Security).

[93] Letter from Diana C. Mauer, Dir. of Homeland Security and Justice Issues, to Sen. Dianne Feinstein (Mar. 7, 2016), https://www.feinstein.senate.gov/public/_cache/files/f/5/f53c4195-430d-4d8d-acde-1ec53e97d0fa/8B0B32645FB7DD74C275F4E0A9B06F96.gao-nics-watchlist-2016-update.pdf. For a detailed account of the current background check process for a person wishing to purchase fire arms from a retail store, see Corinne Jones, Background checks on gun sales: How do they work?, CNN (Apr. 10, 2013), http://www.cnn.com/2013/04/10/politics/background-checks-explainer/.

[94] Kevin Miller, Maine Senators King and Collins Back Gun Sales Ban Based on Terror “watchlists, Portland Press (June 14, 2016), http://www.pressherald.com/2016/06/13/maine-senators-king-and-collins-back-gun-sale-ban-based-on-terror-watch-lists/.

[95] Mike Lillis, Ryan pushes back against terrorist watchlist legislation, The Hill (June 16, 2016), http://thehill.com/policy/national-security/283769-ryan-pushes-back-against-terror-watch-list-legislation.

[96] See US Terror Watchlists: Inaccurate and Ineffective, Take on Hate (2015), http://www.takeonhate.org/_creating_oversight_over_national_watch_lists_and_creating_a_mechanism_for_being_removed_from_those_lists.

[97] Jessie Hellmann, Trump: People on terror watchlist should be barred from gun purchases, The Hill (June 18, 2016), http://thehill.com/blogs/ballot-box/presidential-races/284017-trump-says-those-on-terror-watch-list-should-be-barred; Nick Corasaniti & Alexander Burns, One Ally Remains Firmly Behind Donald Trump: The N.R.A., N.Y. Times (Aug. 10, 2016), https://www.nytimes.com/2016/08/11/us/politics/donald-trump-second-amendment-nra.html?_r=0.

[98] A decade ago, certain federal air marshals said they were ordered to “submit at least one report a month [about a passenger] acting in a suspicious manner on an aircraft,” even if no wrong had been committed, but with the prospect that this person’s name might potentially end up on a watchlist that identifies that individual as a potential terrorist posing a threat to aircraft—a charge some top TSA officials denied. See Marshals: Innocent People Placed On ‘Watch List’ To Meet Quota, 7NEWS:  TheDenverChannel (July 21, 2006), http://www.thedenverchannel.com/news/marshals-innocent-people-placed-on-watch-list-to-meet-quota.

[99] Eric Lichtblau, After Orlando, Questions Over Effectiveness of Terrorism Watch Lists, N.Y. Times (June 22, 2016), https://www.nytimes.com/2016/06/23/us/politics/after-orlando-questions-over-terrorism-watch-lists.html.

[100] Charles S. Clark, The FBI Has Built a Better Terrorist Watchlist, Gov’t Exec. (Mar. 25, 2014), http://www.govexec.com/defense/2014/03/fbi-has-built-better-terrorist-watchlist/81199/.

[101] Id.

[102] Arjun Sethi, The US government can brand you a terrorist based on a Facebook post. We can’t let them make up the rules, The Guardian (Aug. 30, 2014), https://www.theguardian.com/commentisfree/2014/aug/30/terrorist-watch-list-rules-innocent-people.

[103] Id.

[104] Weinger, supra note 5.

[105] See supra note 56, at 1, 2.

[106] Guidance, supra note 7, at 45.

[107] Brian Freskos, How the FBI Terrorist Watch List Works, The Trace (June 29, 2016), https://www.thetrace.org/2016/06/fbi-terrorist-watch-list-guns/.

[108] Terrorist Watch List Screening: Recommendations to Enhance Management Oversight, Reduce Potential Screening Vulnerabilities, and Expand Use of the List, Statement of Eileen R. Larence, Dir. of Homeland Security and Justice Issues, U.S. Gov’t Accountability Office (Oct. 24, 2007), http://www.gao.gov/assets/120/118217.pdf.

[109] Marc Fisher, Trump takes charge with vow to fix nation he sees as broken, Marin News (Jan. 20, 2017), http://www.marinij.com/general-news/20170120/trump-takes-charge-with-vow-to-fix-nation-he-sees-as-broken.

[110] The Privacy and Civil Liberties Oversight Board (PCLOB) is “an independent agency within the executive branch established by the Implementing Recommendations of the 9/11 Commission Act of 2007 . . .  to ensure that the federal government’s efforts to prevent terrorism are balanced with the need to protect privacy and civil liberties.” See Privacy and Civil Liberties Oversight Board, USA.Gov (last visited Jan. 30, 2017), https://www.usa.gov/federal-agencies/privacy-and-civil-liberties-oversight-board.

[111] The U.S. Senate Select Committee on Intelligence (SSCI) oversees the activities and programs of all the agencies that form the Intelligence Community (IC) as well as the Office of the Director of National Intelligence (ODNI). The House Permanent Select Committee on Intelligence (HPSCI) is charged with oversight of the IC. None of the five joint oversight committees oversee the IC.

[112] Emphasis added. For the source of this phrase, see Lewis Evans, The Satires of Juvenal, et al, Satire VI, 1861, 5.

[113] Weinger, supra note 5.

[114] Allister Heath, Once again, it’s the old question: who guards the guardians?, City A.M. (June 11, 2013), http://www.cityam.com/article/once-again-it-s-old-question-who-guards-guardians. Upset at revelations about more surreptitious government snooping, Heath explained that “[u]nlike some, I take very seriously the threat of terrorism. It is wrong to demonise the security services, who in most cases are having to work very hard to contain all sorts of threats. A number of attacks have been thwarted, and in many cases these successes have received insufficient publicity. But the present system – mass, indiscriminate surveillance . . . with very little genuine scrutiny – is not right. The U.S. constitution appears to have been brazenly defied.”

[115] For more on George Orwell, see Arshia Malik, These Orwellian Times, The Nation (Feb. 18, 2016), and Reiner Stach, Death by data: how Kafka’s The Trial prefigured the nightmare of the modern surveillance state, NewStatesman (Jan. 16, 2014), http://www.newstatesman.com/2014/01/death-data-how-kafkas-trial-prefigured-nightmare-modern-surveillance-state.

[116] Mark Clayton, Terrorist watch lists: Are they working as they should?, Christian Science Monitor (May 22, 2013), http://www.csmonitor.com/USA/2013/0522/Terrorist-watch-lists-Are-they-working-as-they-should.Latest

[117] With apologies to Gilbert & Sullivan, here for the civil liberties community is the introduction to the “privacy version” of “I’ve Got a Little List” from The Mikado, modified to say: “I’ve got a little list / I’ve got a little list . . . Of privacy offenders . . . who never would be missed / who never would be missed!”

[118] See Sethi, supra note 103.

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