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Blaming the Messenger for Watchlist Problems

Jay Stanley,
Senior Policy Analyst,
ACLU Speech, Privacy, and Technology Project
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May 7, 2010

Every time some terrorist tries to launch an attack (especially when an alleged terrorist is a Muslim) everyone in Washington sets out to seize upon particular details of the terrorist, his plot, and the authorities’ response, in an effort to find ammunition for their preferred policy prescriptions. But, this is a crazy way to make policy. However, stories are more compelling than abstract rational analysis, and few political leaders have the steel, the Churchillian resolve to stand up against the breathless 24/7 media coverage and say, “stay cool, Americans, don’t panic, and don’t betray your better principles.” As a result, our security policymaking tends to lurch around, often with little regard for what is effective — or constitutional — and driven by the particular circumstances of the latest plot.

This happened with the so-called Christmas Day bomber, when the government rushed to deploy full-body scanners, without much deliberation as to how effective they might be. Now we have the would-be SUV bomber in New York last week, and the game is being played again.

One example is this blog post by Stewart Baker, who was the Assistant Secretary for Policy at Homeland Security in the Bush Adminsitration, and is a longtime pillar of the nation’s security establishment. In the piece, Baker looks at the glitch that allowed the alleged SUV bomber, Faisal Shahzad, to board an aircraft (though not take off) despite being listed on the no-fly list.

And who is to blame for this glitch, in Baker’s view? Ultimately, it is “privacy campaigners, left and right.” By which he means, among others, us at the ACLU. (Actually, we are the only one he names.)

His reasoning runs like this: The reason Shahzad was allowed on the plane is that the airline in question (Emirates) failed to update its copy of the no-fly list when requested to do so by the Department of Homeland Security. A government program, called the Computer Assisted Passenger Prescreening System (CAPPS), then CAPPS II, and later Secure Flight, would (if ever finally implemented) take away the airlines’ role in administering the no-fly and selectee watchlists — among many other things. The “privacy lobby” (as Baker calls us) has objected to those programs, which has been one factor in delaying this change in roles. Therefore, it’s all our fault.

Baker’s account is, at best, a very dubious and strained reading of the situation:

  • First, the government has needed little outside help in delaying these programs. As we pointed out in this 2006 timeline (PDF) of the program, the federal government’s efforts to screen airline passengers have an almost serio-comic history. It wasn’t just the name that kept changing, it was the very nature of the program — from full full-scale datamining, to simple watchlist checking. These ever-changing proposals were beset by repeated delays for a wide variety of reasons, including questions about its effectiveness, problems with due process and redress, “garbage in, garbage out” problems with our bloated and inaccurate watchlists, and general bureaucratic indecision and incompetence.
  • Second, the ACLU has never opposed watchlists that are narrowly targeted and properly run. When there is sufficient individualized suspicion that a person is involved in actual criminal terrorist acts — as apparently was the case with Mr. Shahzad — then we have no problem with it.
  • Third, one of the elements of the Secure Flight program that we have not opposed, is the goal of removing watchlist administration from the airlines and having it run directly by the government. For years we have always publicly said that we have no problem with that element of the program, and that it makes sense.

Mr. Baker is correct that part of Secure Flight and its predecessor CAPPS II has always been to transfer administration of the watchlists from the airlines to the government. But packaged along with that have been all kinds of other, massively misguided policy ideas, such as:

  • Putting the government into the business of doing background checks on all Americans who fly, and assigning them a security risk score based on unclear and often inaccurate data sources.
  • Assaulting air travelers with a dysfunctional system of watch lists that have over a million entries, and which results in untold numbers of ordinary Americans being treated like terrorists.
  • A total lack of regard for the necessity, in a fair and democratic country, of including due process checks and balances to protect innocent people from being caught up by these faulty watchlists, and remove their name and/or false information in the databases, or even find out why they have been listed.

Mr. Baker seems to imply that we should have kept quiet about these massive problems with the passenger profiling proposals that were floated during the Bush administration and afterwards. But that is not the American way, and if the government hasn’t been able to put in place a fair and effective system for checking for genuine terrorist suspects, it has only itself to blame.

It’s important to protect against terrorist attacks, but Americans are not a meek people and expecting us to say “yes” to every sweeping power grab by the security establishment, without examining whether such steps will actually make us safer, is not the way to do it.