Jerome H. Kahan*<\/p>\n
Abstract<\/strong><\/p>\n 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 \u201creasonable suspicion,\u201d 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\u00a0noticed 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 \u201cblacklisted,\u201d thus raising serious issues about the constitutionality of a process based upon the presumption of guilt until proven otherwise\u2014the 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.<\/p>\n <\/p>\n Introduction<\/strong><\/p>\n 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]<\/sup><\/a> 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]<\/sup><\/a> 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]<\/sup><\/a> 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.<\/p>\n Established by Presidential Directives, approved by the Attorney General, and implemented by the National Counterterrorism Center (NCTC) and the FBI, the watchlisting \u00a0program 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]<\/sup><\/a> 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]<\/sup><\/a> 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\u2014including unrevealed invasions of their constitutional freedoms\u2014when trying to travel or to find or hold jobs.[6]<\/sup><\/a><\/p>\n Recent acquisition and publication by The Intercept<\/em> 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]<\/sup><\/a> 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.<\/p>\n I. The Watchlisting System<\/strong><\/p>\n One of the reasons the U.S. government failed to anticipate and thwart the 9\/11 attacks was that \u201cinformation on terrorist suspects was disorganized and poorly used\u201d in part due to \u201cthe lack of an integrated terrorist watch list,\u201d which \u201chas long been described as a critical shortfall in homeland security and the war against Al Qaeda and other terrorist groups.\u201d[8]<\/sup><\/a> 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 \u201cbuild and continually update a fully integrated, fully accessible terrorist watch list,\u201d making the FBI responsible for integrating the dozen existing terrorist lists operated by multiple agencies.[9]<\/sup><\/a> 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 \u201ca unified and comprehensive watchlist [that] all investigators, agents, and screeners\u201d could quickly consult to help them detect and disrupt terrorist threats.[10]<\/sup><\/a><\/p>\n 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]<\/sup><\/a> Unexpectedly, this process was severely criticized on Christmas Day 2009 when it was discovered that the name of a suspected terrorist, the so-called \u201cunderwear bomber,\u201d 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\u2014a 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]<\/sup><\/a> 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<\/em>.[13]<\/sup><\/a> 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.<\/p>\n The Watchlisting Guidance defines a \u201cknown terrorist\u201d as an individual who has: (1) been indicted for conducting terrorist acts; (2) committed acts \u201cdangerous 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.\u201d[14]<\/sup><\/a> The Guidance also explains that an individual can be watchlisted if he or she supports or facilitates<\/em> 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]<\/sup><\/a> Mainly focused on international<\/em> terrorists, the Watchlist also includes data provided by the FBI on known domestic<\/em> terrorists who engage in the foregoing activities within the territorial jurisdiction of the United States.[16]<\/sup><\/a><\/p>\n The Watchlisting Guidance defines a \u201csuspected terrorist\u201d as an individual \u201cwho 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<\/em>.\u201d[17]<\/sup><\/a> This is a weak standard that presumes an individual suspected of being a terrorist or having ties to terrorism is guilty until proven otherwise\u2014the opposite of what is perhaps the most sacred principle in our criminal justice system, that is, the assumption that a defendant is innocent <\/em>until proven guilty.[18]<\/sup><\/a> 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\u2019s possible terrorist-related activities, including \u201cderogatory information\u201d to determine whether the reasonable suspicion standard has been met.[19]<\/a> 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]<\/sup><\/a><\/p>\n 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\u2019s immediate family and other associated individuals is maintained as long as there is derogatory information sufficient to meet the reasonable suspicion standard.[21]<\/sup><\/a> 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.<\/p>\n II. Four Key Watchlists<\/strong><\/p>\n The four watchlists discussed below\u2014TIDE, the Terrorist Watchlist, and the No-Fly and Selectee Lists\u2014are 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.<\/p>\n A. TIDE<\/strong><\/p>\n 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 \u201ccentral and shared knowledge bank on known and suspected terrorists and international terror.\u201d[22]<\/sup><\/a> 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 \u201cwhat terrorists have done and how we have been tracking them.\u201d[23]<\/sup><\/a> Individual entries include names and other associated materials as well as other \u201cderogatory information,\u201d with each record assigned specific classifications from unclassified to the highest levels available\u2014causing the entire database to be classified Top Secret\/Sensitive Compartmented Information (SCI).[24]<\/sup><\/a><\/p>\n 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]<\/sup><\/a> In addition to obtaining information from IC sources and data acquired from its close contacts with select foreign counterparts, the CIA reportedly uses \u201ca previously unknown program, code-named Hydra, to secretly access databases maintained by foreign countries and extract\u00a0data to add to the watchlists.\u201d[26]<\/sup><\/a> 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.<\/p>\n 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]<\/sup><\/a> Due to its high classification and extraordinary sensitivity, NCTC will neither publicly confirm nor deny whether someone\u2019s name has been entered on TIDE.<\/p>\n B. Terrorist Watchlist<\/strong><\/p>\n The Terrorist Watchlist discussed earlier, officially designated as\u00a0 the \u201cTerrorist Screening Database\u201d (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]<\/sup><\/a> 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\u2014a large number, but only a very small fraction of the total.[29]<\/sup><\/a><\/p>\n 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\u2019s 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]<\/sup><\/a><\/p>\n 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]<\/sup><\/a> The FBI is responsible only for domestic terrorism, including individuals associated with violent extremist organizations such as white supremacist movements. The Bureau\u2019s 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\u2019s databases and also from so-called \u201csuspicious activity reports\u201d (SARs) received by the FBI from alert citizens or cops on the beat.[32]<\/sup><\/a><\/p>\n Whatever the origin, each submission to the TSC must meet the reasonable suspicion watchlisting standard, based on \u201carticulable 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\u201d; 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]<\/sup><\/a> 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.<\/p>\n An individual can be placed on this Watchlist even if acquitted of a terrorism-related crime on the grounds that \u201cconviction in U.S. courts requires evidence beyond a reasonable doubt, whereas watchlisting requires only a reasonable suspicion\u201d of terrorist-related activities.[34]<\/sup><\/a> 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]<\/sup><\/a><\/p>\n 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\u2019s 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\u2014an \u201cinconvenience\u201d that TSC supposedly seeks to minimize.[36]<\/sup><\/a><\/p>\n C. No-Fly List<\/strong><\/p>\n The\u00a0No-Fly List, also maintained by the TSC and classified sensitive, is primarily used by the\u00a0Transportation Security Administration (TSA)\u00a0to 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]<\/sup><\/a> 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]<\/sup><\/a> 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]<\/sup><\/a> 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.<\/p>\n 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 \u201cabout 81,000 names, with fewer than 1,000 U.S. persons.\u201d[40]<\/sup><\/a> However, this is still only a very small fraction of the number of individuals on the terrorist watchlist.<\/p>\n Regarding airline security, each time an individual arrives at an airline ticket counter, that person\u2019s name is checked to determine whether his or her name is on this list. If there is a match to that person\u2019s 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]<\/sup><\/a> 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]<\/sup><\/a> 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]<\/sup><\/a><\/p>\n 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 \u201cconstitutionally deficient or otherwise improper.\u201d[44]<\/sup><\/a> 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\u2019s 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 \u201cthe 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\u2019s status, to the extent feasible, consistent with the national security and law enforcement interests at stake.\u201d[45]<\/sup><\/a> 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.<\/p>\n Finally, after the December 2009 \u201cunderwear bomber\u201d episode, the Assistant to the President\u2019s 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]<\/sup><\/a> 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]<\/a> 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]<\/sup><\/a> 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 \u201cindividuals could only be watchlisted if they were associated with a known or suspected terrorist, not based on their affiliation with\u00a0 . . . [a religious] or any other non-terrorist-related organization.\u201d[49]<\/sup><\/a><\/p>\n D. Selectee List<\/strong><\/p>\n 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.\u201d[50]<\/sup><\/a> The decision to include a person on the No-Fly List or Selectee List must include \u201cadditional derogatory requirements\u201d 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]<\/sup><\/a> 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\u2014or the No-Fly List for that matter\u2014regardless 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]<\/sup><\/a><\/p>\n The Expanded Selectee List (ESEL) includes records from the comprehensive Terrorist Watchlist that contain an individual\u2019s full name and date of birth, but fail to meet the special criteria for placement on either the No-Fly or Selectee Lists.[53]<\/sup><\/a> 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]<\/sup><\/a> It is unclear whether the new TRIP process applies to individuals on the ESEL or Selectee List.<\/p>\n III. Screening for Watchlisted Individuals<\/strong><\/p>\n 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 \u201cdetecting, identifying, tracking, and interdicting people\u201d 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\u00a0noticed by authorities or reported by citizens.[55]<\/sup><\/a> To this end, the TSC sends the latest version of the Terrorist Watchlist \u201cdownstream\u201d to all front-line federal screening agencies, including TSA, CBP, USIS, ICE, and USCG\u2014all components of DHS\u2014as well as to the \u00a0Drug Enforcement Administration (DEA), the Internal Revenue Service (IRS), the Departments of Defense (DoD) and State (DOS, and all overseas\u00a0 diplomatic posts.[56]<\/sup><\/a> 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]<\/sup><\/a> 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]<\/sup><\/a><\/p>\n 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\u2014depending 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]<\/sup><\/a> 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\u2019s 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 <\/em>alerting law enforcement officers of the individual\u2019s status, a so-called \u201csilent hit.\u201d[60]<\/sup><\/a><\/p>\n IV. Challenges to Civil Liberties<\/strong><\/p>\n Over the years, concerns have been expressed that the watchlisting process violates individuals\u2019 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 \u201creasonable suspicion\u201d standard that requires neither irrefutable evidence nor concrete facts for placing someone on a watchlist, without publicizing these criteria.[61]<\/sup><\/a><\/p>\n A. Blacklisting Innocent People<\/strong><\/p>\n 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 \u201crevving out of control.\u201d[62]<\/sup><\/a> Indeed, as these lists have grown, they have become \u201cmore error-prone, unreliable, and increasingly applied in an arbitrary and discriminatory manner,\u201d with the result that watchlist records are filled with inappropriate, inaccurate, or outdated data.[63]<\/sup><\/a> 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]<\/sup><\/a> Moreover, in naming individuals for inclusion on the Terrorist Watchlist, analysts rely predominantly on the subjective standard of reasonableness, based on the dubious assumption \u00a0that all nominations of known or suspected terrorists are by definition considered justified, unless<\/em> NCTC has evidence to the contrary.[65]<\/sup><\/a> In essence, watchlisting individuals requires nominations to be \u201cpresumptively valid\u201d reflecting grounds for reasonable opinion or belief\u2014a standard that requires far less of a burden of proof than the need to prove guilt \u201cbeyond a reasonable doubt\u201d as a key element of our criminal justice system. This results in a program that secretly blacklists people and then gives them \u201cthe impossible task of proving themselves innocent\u201d of terrorist actions they have not committed.[66]<\/sup><\/a><\/p>\n 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]<\/sup><\/a> This is quite an overstatement, given that the TSC conducts periodic \u201cquality assurance reviews \u2026 to ensure that all . . . [watchlisted] records maintained are current, accurate, and thorough,\u201d yet mistakes continue to be made.[68]<\/sup><\/a> Other officials reportedly admit that TIDE, for instance, has never operated perfectly, given its \u201cfundamental 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\u201d\u2014so mistakes found in TIDE can trickle down into the Terrorist and No-Fly Lists.[69]<\/sup><\/a><\/p>\n 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 \u201c1 billion false alarms\u201d\u2014that is, emails, meetings, associations, phone calls, or items falsely tagged as terrorism-related\u2014\u201cfor every real terrorist plot it uncovers.\u201d[70]<\/sup><\/a> 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]<\/sup><\/a><\/p>\n 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]<\/sup><\/a> 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 \u201chidden costs\u201d 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]<\/sup><\/a> In discussing this issue, the ACLU has argued that a focused watchlist with few false accusations \u201cis not only better for civil liberties, but more likely to provide a security benefit\u201d by catching known or suspected terrorists who might otherwise be lost in the maze of names on the currently inflated list of names.[74]<\/sup><\/a><\/p>\n 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 \u201c[o]nce derogatory information is posted to the . . . [Terrorist Watchlist], it can propagate extensively through the government\u2019s interlocking complex of databases, like a bad credit report that will never go away.\u201d[75]<\/sup><\/a> There are even reports of \u201cshadow\u201d 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]<\/sup><\/a> As one commenter wryly put it: \u201cGiven 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\u2019s 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.\u201d[77]<\/sup><\/a><\/p>\n B. Violation of Civil liberties<\/strong><\/p>\n The 2013 Guidance acknowledges that \u201cwatchlisting is not an exact science, [\u2026because] [T]here are inherent limitations in any primarily name based system and analytic judgments may differ regarding whether subjective criteria have been met.\u201d[78]<\/sup><\/a> The Guidance goes on to say, \u201c[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.\u201d[79]<\/sup><\/a> However, the ACLU has argued the watchlisting process is not only inconsistent with constitutional principles but also \u201cunreliable 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,\u201d thereby swamping the system.[80]<\/sup><\/a><\/p>\n In managing the watchlisting process, the TSC claims to be \u201cdedicated to ensuring activities are conducted in a manner consistent with protecting privacy and civil liberties, [\u2026 not watchlisting individuals] based solely on race, ethnicity, national origin, religious affiliation, [\u2026or harming their First Amendment-protected activities, such as freedom of speech and the press as well as] \u201cthe right to peaceably assemble and to petition the government for a redress of grievances.\u201d[81]<\/sup><\/a> 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 \u201cdirects 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.\u201d[82]<\/sup><\/a><\/p>\n 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]<\/sup><\/a> 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\u00a0 an individual was indeed wrongly placed on the No-Fly list and taking steps to fix this error.[84]<\/sup><\/a> \u00a0When it comes to the Terrorist Watchlist, however, individuals mistakenly recorded do not have a fair, effective, and prompt redress procedure.[85]<\/sup><\/a> 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\u2019s 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\u2019s 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]<\/sup><\/a><\/p>\n 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\u2019s 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.<\/p>\n Meanwhile, the sizes of the various lists have exploded, notably the No-Fly List.[87]<\/sup><\/a> Administration officials argue that this exponential growth has not \u201cchoked the system\u201d 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]<\/sup><\/a> However, experts argue that the strategy of including a landslide of names on the watchlists has resulted in a \u201cdata glut,\u201d making it more demanding, rather than less challenging, for the government to discover, investigate, and apprehend terrorists.[89]<\/sup><\/a><\/p>\n V. Need for Oversight<\/strong><\/p>\n Notwithstanding efforts by the DHS and DOJ Inspector Generals to monitor the\u00a0 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]<\/sup><\/a> In its 2016 study, the ACLU concluded that \u201cthe current watchlisting system lacks adequate substantive oversight,\u201d arguing that the Executive Branch can be said to \u201cown\u201d this system and thus cannot be expected to credibly and independently oversee this effort, despite claims to the contrary.<\/p>\n As if anticipating the results of the ACLU\u2019s study referred to above, that organization issued a statement for the record at a 2007 Hearing before the House Homeland Security Committee\u00a0 expressing concern that unless the legislative branch acts to overhaul the watchlisting process and the list itself, \u201c[w]e will be stuck with a massive blacklist of mostly innocent persons that is hopelessly unreliable.\u201d[91]<\/sup><\/a> In that same year, the Chairman of this Committee warned that \u201c[t]he American people will support the watch list\u00a0 . . . [only] if there is accountability . . . [and] trust . . . [that this enterprise] is being done right, not\u00a0 . . . [instilling] fear that they are being monitored by Big Brother.\u201d[92]<\/sup><\/a> 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.<\/p>\n