The Government’s Own Rules Show Why Watchlists Make Bad Policy

Politicians of all stripes have been embracing watchlists lately.  

Legislators in both parties have proposed using the watchlisting system to regulate gun purchases — an approach that both Donald Trump and Hillary Clinton support. Others have been even less burdened by legal or constitutional concerns. Rep. Jeff Duncan (R-S.C.), for instance, proposed immediately deporting all immigrants who are on watchlists, and former New York mayor Rudy Giuliani called for forcing Muslims who are on watchlists to wear electronic location monitoring tags.

These proposals have one thing in common: They rely on a watchlisting system that is error-prone and unfair. We have long criticized that system for using vague, exception-ridden standards and secret evidence to blacklist people without giving them any meaningful way to correct errors and clear their names.

We’ve also noted troubling indications that the government watchlists people in an arbitrary or discriminatory way, particularly members of American Muslim, Arab, and South Asian communities. And we know the consequences of being watchlisted can be severe, ranging from travel problems to repeated detention and questioning in the United States or abroad — to say nothing of the shame, fear, and denigration that come with being branded a terrorism suspect.

To understand how serious and pervasive the flaws are in the watchlisting system, it’s worth taking a close look at the government’s 78-page Watchlisting Guidance, which was leaked and published online by The Intercept in July 2014. Considering the renewed attention around this country’s watchlisting system, we’ve put together a briefing paper that highlights some of the most significant problems with the guidance.

1. The level of “suspicion” required for placement on the master watchlist is less than reasonable.

The guidance permits officials to watchlist people if they are “reasonably suspected” of being suspected terrorists. That’s not only a very low standard, but also a circular and confusing one. It also states that to meet that standard, “concrete facts are not necessary,” and “due weight should be given” to “inferences” by officials who “nominate” people to the watchlist. That amounts to a presumption in favor of watchlisting, creating an incentive to add people to watchlists without any quality controls to keep the lists accurate or remove names added in error.

2. Uncorroborated information of questionable reliability can serve as the basis for watchlisting people.

The guidance specifically states that people may be watchlisted based on “uncorroborated” information of questionable or even suspect reliability, as long as the information isn't “know[n] to be unreliable.” Indeed, a single Facebook post, tweet, or anonymous letter may be enough to watchlist someone. The guidance does not explain how to ensure sure uncorroborated information of doubtful reliability isn’t a mere hunch or, for that matter, rumor and innuendo. Instead, it allows officials to simply decide, in a vacuum, that their suspicion is “reasonable.” Perhaps that’s why, as of June 2016, the master watchlist had grown to include approximately one million people.

3. Actual innocence or acquittal does not guarantee removal from a watchlist.

The guidance permits the government to watchlist people even after they’ve been acquitted of terrorism-related crimes. Given the lack of an effective redress process for people on watchlists, that means they can languish there indefinitely.

4. The identifying information required for inclusion on the master watchlist makes misidentifications likely.

The “minimum identifying criteria” for inclusion on the watchlist are alarmingly skeletal, making it likely that innocent people will routinely be mistaken for watchlisted individuals and suffer the effects of watchlisting themselves. For instance, the criteria can require as little as a last name, an occupation, and a date-of-birth range that could span years. Some of the high-profile examples of mistakes involving watchlists are well known, but many others continue to struggle with the consequences of those mistakes, which can be severe.

5. The guidance includes exceptions for noncitizens that swallow the rule.

For noncitizens, the guidance essentially does away with the (already problematic) “reasonable suspicion” standard. Instead, it allows those without U.S. citizenship to be watchlisted if they have a “possible nexus to terrorism,” even if the information supporting that nexus is “very limited or of suspected reliability.” It also permits watchlisting noncitizens based on a mere association with someone else who has already been watchlisted, even where there is no indication of involvement in the watchlisted person’s suspicious activities. These exceptions mean that an innocent but unfortunate acquaintance may be all it takes to deny someone U.S. citizenship or permanent residence in the United States.

6. The government is vacuuming up and storing massive amounts of private data on watchlisted individuals.

The guidance also instructs government officials to conduct what amounts to an intelligence-gathering blitz during “encounters,” or interactions, with people on watchlists. Anything and everything of potential value is fair game for search — pocket litter, luggage tags, hotel receipts, conference materials, membership cards, bank statements, “anything with an account number,” ATM receipts, and all manner of electronic media. By directing officials to collect, exploit, and store as much information about watchlisted people as possible, the guidance makes clear that one of the most serious consequences of being placed on a watchlist is the invasion of personal privacy.

The Watchlisting Guidance helps explain why the watchlisting system remains bloated and unfair. Rather than making us more secure, that system stigmatizes people, erodes privacy, and undermines cherished constitutional rights. It also shows why — despite their current popularity — we should reject policies that rely on the watchlisting system and expect our policymakers and presidential candidates to do the same.

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Anonymous

The VA uses a similar system by "flagging" a veteran within their system to make sure they are "watched". And you can wind up with a "flag" for a whole myriad of reasons and are never given the chance to protest the action or have any sort of "fair trial" before an impartial panel. It's just another way the VA punish's vets that complain about the horrible customer service.

Anonymous

While there are mistakes made, there is also malicious intent by some government officials - intentional abuses by corrupt officials - sometimes blacklisting people for legal First Amendment exercises or they simply don't like them.

Local police agencies have also uploaded inaccurate blacklists, dating back at least to the 1980's, to national blacklists after 9/11 - having absolutely nothing to do with terrorism or crime. There is apparently a financial motive for government officials to commit this fraud against the American taxpayers.

There should be criminal penalties for officials blacklisting people out of malice or for profit. There is absolutely no risk to the officials blacklisting other people and the targets rarely get confronted - so there is little risk they will get caught for this fraud of taxpayer money.

Anonymous

We should never forget that "preemption policies", including the Bush Preemption Doctrine, have always been illegal under the U.S. Constitution and federal statutes that define constitutional rights into law. The Judicial Branch courts have just been slow to enforce Judicial Review over the political branches.

Preemption policies are illegal, the 4th Amendment has never been amended since "Terry v. Ohio" in 1968, which gutted the 4th Amendment without a constitutional amendment. You have to amend the constitution in order to change the letter & spirit of a constitutional amendment - presidents, Congress and even judges don't have that authority without a constitutional amendment.

It is also illegal under federal law to harass any person for any reason - regardless of whether that person has been convicted of a crime in the past - it's illegal to harass that person under the U.S. Constitution and federal statutes. In other words watchlists or blacklists of any kind, without a conviction, is illegal under the American form of government.

When the target has not been proven guilty of a crime, the only real crime in that equation is crime perpetrated by the government official or contractor violating federal statutes. Constitutional statutes always supersede unconstitutional clauses in statutes, regardless of legal precedent.

Anonymous

Shouldn't the biggest and most publicized issue of the 2016 elections be: America's embrace of evil after 9/11 and how to restore American values?

Many younger Americans think torture, assassinations, gulags and domestic spying is normal. They think this is something that is consistent with American values, Judeo-Christian values and good people - it's not consistent with any of those values. Americans now embrace the values of our former enemies not James Madison and the Framers of the Constitution.

The ACLU should run full-page ads in the Washington Post, New York Times and other leading press/media organizations to force the 2016 presidential candidates to talk about the real State of the Union. The silence is deafening!

Dogmatix

When the government puts someone on the no fly list, is it a criminal or civil matter?
If it is a criminal matter, then according to the 5th and 6th amendments, there needs to be a grand jury, a speedy and public trial, an impartial jury, and the accused has a right to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

If it is a civil matter, then he is entitled to just compensation for what the government is taking from him, since the government is taking his rights, his property, for their benefit, and that of the public. Just another case of eminent domain.

Seems to me that if the government believes an individual is so dangerous that he is not allowed to travel by common carrier, then the government should provide alternate transportation of equal speed, comfort, convenience and cost.

Can you imagine what would happen if the government had to provide private jet transportation, on demand, to all those on the no fly list? We would see that list shrink to nothing overnight, as the government, after due consideration, would come to the conclusion that 99.9999% of those on the list really weren't a threat after all.

Anonymous

What about a VAs kid being harassed via "illegal" ??(racketeering) to harrass civilians not on a terrorist watch list with 24/7 community embarrassment like voyeurism via remote view (unprofessional surveillance) used to attack a target and blacklist based on opinion that took precedence.
Its not like a professionally registered watch list over terrorism. Paperwork and registration is unattainable. They solicite people for crime via attack calling it probable..I've seen people do this to bystanders as kids..like a paid rogue CIA program?? What are those programs They call gang stalking?? They let anybody betray reasonable privacy acts and attack. They accuse people to act like they have a concern that attack Will result in another attack!? More then probable is what they said using all forms of terrorism, sexual harassment privacy invasion, and insane repetitive attacks. Who are these self proclaimed mobsters with emf weapons..what's their affiliation.. They lie a lot and there isn't sufficient evidence to bring into court about their undertakings. They presume themselves always right to attack. Predisposal is against the law, so is coercion, harassment nuisances, mental distress from sexual harassment, and constant undertakings like slavedom to cointel ops... What are the civil rights of the target and how is it examined in court about cruel undertakings under watches by just anybody..even locker rooms etc?

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