Blog of Rights

How to Improve Terrorist Watchlists

By Michael German, Senior Policy Counsel, ACLU Washington Legislative Office at 4:28pm

(Originally posted on Freep.com)

We quickly learned that the would-be bomber who sought to bring down Flight 253 just before landing in Detroit on Christmas Day was in a terrorist database, but still allowed to board the plane. As a result, President Barack Obama has called for a much needed review of our terrorist watch list system, and members of Congress are floating ideas about how to keep alleged terrorists like Umar Farouk Abdulmutallab off our planes and out of the country.

But we must be careful to address the actual problems with watch lists and avoid solutions that would only make it harder to find the terrorist needle in the ever-expanding hay stack of watch list entries. We must avoid the pattern in which time and time again, Congress has overreacted to external forces by embracing solutions that have proven unhelpful, if not counterproductive.

Rather than hastily expand the contents and use of these watch lists, Congress should enact reforms that improve the accuracy of the lists while limiting their potential for misuse.

The terrorist watch lists have been plagued by errors throughout their post-9/11 evolution. Mistakes in the lists have led to the embarrassing detainment of such prominent figures as the late Senator Ted Kennedy, and implicated countless innocent travelers like Kiernan O’Dwyer, a veteran American Airlines pilot stopped more than 80 times by U.S. customs agents. But the problems go beyond simple inconvenience.

Late last year, the Washington Post reported shocking new FBI data indicating that the ever expanding watch list database has swelled to over one million entries, and continues to grow by one thousand individuals each day. These estimates come on the heels of a series of internal government audits in which the Government Accountability Office and Justice Department have found severe flaws in the FBI’s terror watch list nomination practices.

The latest DOJ Inspector General’s report concluded that approximately 35% of those sampled were left on the list based on outdated information or material unrelated to terrorism.

In response to these warnings, the government has periodically purged entries and implemented some positive but inadequate reforms. Nor is it sufficient that the government has now adopted an intelligence-based approach to flag travelers for secondary screenings rather than the country-specific system adopted immediately after the Christmas day attempt. Now that President Obama has ordered yet another broad review of watch list policies, we must take advantage of this opportunity to truly fix our watch list system.

The consequences of flawed watch lists are profound, preventing detection of actual terrorists and affecting personal freedoms we enjoy every day. For instance, a report by the San Francisco Lawyers’ Committee for Civil Rights reveals that private businesses have at times turned prospective consumers into credit pariahs by relying on error-riddled watch lists. An unsuspecting American citizen named Tom Kubbany was denied the right to buy a home merely because his middle name, Hassan, matched an alias of one of Saddam Hussein’s sons.

If some members of Congress get their way, these same highly suspect lists may soon be used to exclude people from certain sectors of the workforce, causing undue hardship in an already fragile economy.

To ensure that watch lists actually protect against national security threats and to avoid penalizing innocent victims like Tom Kubbany in the future, Congress should take some simple steps to improve our government’s use of watch lists. Many of these vital reforms, outlined in the Constitution Project’s report “Promoting Accuracy and Fairness in the Use of Government Watch Lists,” are long overdue.

First, we must improve the accuracy of the lists on the front end. Most important, our intelligence agents need clear written standards that detail the specific evidentiary requirements for placing a person on a list.

Second, we must have a meaningful process to fix mistakes on the back end. There must be real redress opportunities for individuals erroneously placed on a watch list. Improved and standardized remedial procedures will promote enhanced government accountability and restore confidence in watch lists.

Finally, we must not allow use of watch lists to invade every sector of our daily lives. Grave threats to our country will not be averted by using watch lists as a blacklist to deny employment, licenses or other contracts to individuals. In these facets of everyday life, a more than adequate opportunity exists to conduct thorough background checks, and reliance on flawed watch lists poses an undue risk to individual civil liberties.

Accurate terrorist watch lists, if managed and used properly, can help protect our national security and freedom. In the wake of the Dec. 25 terrorist attempt, Congress should embrace reforms that will thwart would-be attackers without sacrificing our fundamental liberties and values.

— By Michael German and Lawrence Wilkerson. Michael German is a policy counsel for the ACLU and a former special agent for the FBI. Lawrence B. Wilkerson was a colonel in the United States Army and served as chief of staff to Secretary of State Colin Powell.

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