Who's Watching the Watch List?

The good folks at the FBI's Terrorism Screening Center are doing a bang-up job: they keep identifying more and more terrorists among us. Don't believe me? Just look at the number of records the TSC has added to the terrorist watch list: From 158,374 in June 2004 to 754,960 last May, and likely above 860,000 at the rate it's growing. These numbers don't lie. Clearly, terrorists stand poised to replace suckers in P.T. Barnum's old adage, “there's one born every minute.”

Or...not. What testimony in the Senate Homeland Security Committee and a corresponding report by the Government Accountability Office revealed today is something we at the ACLU have been saying for the last six years: The terrorist watch lists are a mess. Treating so many individuals, the vast majority of them innocent, as permanent suspects not only harms civil liberties, it's hopelessly inefficient as a security measure.

Watch lists can work in a very limited context. As our Senior Legislative Counsel Tim Sparapani has pointed out, the FBI's Top Ten Most Wanted list is a great example of how a short, targeted list can inform the public of real threats and can easily be kept relevant, accurate, and up-to-date. By contrast, a watch list with hundreds of thousands of names is sure to result in vast numbers of "hits" that are nothing more than false positives, particularly when that list is riddled with errors and omissions, as a report by the Justice Department's Inspector General recently found.

We've heard about this outcome anecdotally over and over again - such as in the case of Sen. Ted Kennedy, who shares a birth name with a watchlisted member of the IRA - and the GAO's new report confirms it: The TSC watch list has resulted in thousands of individuals being “positively matched,” but for all this matching “the vast majority” of cases result in the individual being released. This reinforces a report by The Washington Post in August that the terrorist watch list was very good at flagging travelers for scrutiny, it generated few actual arrests.

This can be more than a hassle for folks who are singled out every time they try to board a plane, but it has an impact on the rest of us too. The more time that law enforcement officials, border patrol officers, and airport screeners spend dealing with false positives resulting from the bloated watch list, the less time they are spending identifying actual threats.

To the Department of Homeland Security's credit, they have made some improvements to the watch list screening system, including finally developing a method for indicating that someone with the same name as a person on the watch list may not in fact be the same person. But all the improvements in the world won't fix the fundamental problem: The size of the watch list is inversely correlated with its utility. In other words, the bigger the list, the more useless it is.

The original flawed mentality - that if a Top Ten Most Wanted list works well, then a Top One Million Most Wanted list will work great - still pervades the agencies that maintain and use the terrorist watch list. This must change. Further, while redress procedures have been introduced, the bar for adding someone to the list remains absurdly low. The GAO report notes that individuals may be nominated to the list if they are the subject of an ongoing counterterrorism investigation - no problems there - and if the individual is the subject of a preliminary investigation “to determine if they have links to terrorism.” (emphasis added) This means that you can be added to the watch list even if there is not enough information to open a full investigation on you. So why stop at a watch list of one million? The standard for inclusion applies to everyone in the world.

It's time for Congress to start exercising real oversight of the watch list, and today's hearing is a good start. If our government is going to rely on watch lists so heavily, they need to get their house in order. Otherwise, perhaps they should just get it over with and put all 300 million Americans on the list today. After all, we're all “potential” threats.

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