The federal government’s (DHS/TSA) main terrorist watch list has grown to at least 700,000 people, with little scrutiny over how the determinations are made or the impact on those marked with the terrorist label.
“If you’ve done the paperwork correctly, then you can effectively enter someone onto the watch list,” said Anya Bernstein, an associate professor at the SUNY Buffalo Law School and author of “The Hidden Costs of Terrorist Watch Lists,” published by the Buffalo Law Review in May. “There’s no indication that agencies undertake any kind of regular retrospective review to assess how good they are at predicting the conduct they’re targeting.”
What’s more, the government refuses to confirm or deny whether someone is on the list, officially called the Terrorist Screening Database, or divulge the criteria used to make the decisions — other than to say the database includes “individuals known or suspected to be or have been engaged in conduct constituting, in preparation for, in aid of, or related to terrorism and terrorist activities.”
Even less is known about the secondary watch lists that are derived from the main one, including the no-fly list (used to prevent people from boarding aircraft), the selectee and expanded selectee lists (used to flag travelers for extra screening at airport checkpoints), the TECS database (used to vet people entering or leaving the United States), the Consular Lookout and Support System (used to screen visa applications) and the known or suspected terrorists list (used by law enforcement in routine police encounters).
For people who have landed on these lists, the terrorist designation has been difficult to challenge legally — although that may be about to change. On Monday, a lawsuit brought by a traveler seeking removal of her name from the no-fly list, or at least due process to challenge that list, is going to trial in Federal District Court in San Francisco, after almost eight years of legal wrangling.
The government says that revealing this type of information would jeopardize national security. In April, Attorney General Eric H. Holder Jr. asserted to the court “a formal claim of the state secrets privilege” in the case.
In another case, Latif v. Holder, 13 American citizens who have been denied boarding on flights are seeking removal of their names from any watch list, as well as the reasons they have been banned and an opportunity to rebut any derogatory information.
“People who are accused of being enemy combatants at Guantánamo have the ability to challenge their detention, however imperfect that now is,” said Hina Shamsi, a lawyer with the American Civil Liberties Union, which is representing the plaintiffs. “It makes no sense that people who have not actually been accused of any wrongdoing can’t challenge” their inclusion on a watch list.
The Terrorist Screening Center, which administers the main terrorist watch list, declined to discuss its procedures, or to release current data about the number of people on various watch lists, and how many of them are American citizens. A T.S.C. official did say that fewer than 1 percent of the people in the main terrorist database are United States citizens or legal permanent residents, but there is no way to confirm that number.
Lawsuit challenging scholar’s placement on TSA watchlist begins:
In 2005, Rahinah Ibrahim, a visiting scholar at Stanford University, was handcuffed, detained and interrogated for two hours at San Francisco International Airport, after being told she was on a U.S. government watchlist.
Today, eight years later, the 48-year-old Malaysian academic and mother of four became the first person to take the U.S. to trial after being included in America’s database of suspected terrorists. At issue: whether someone wrongly watchlisted has a right to formally clear their name in court — and whether the government even has to admit that it placed someone on the list to begin with.
The first-of-its-kind trial could have serious implications for the government’s vast secret watchlist system, which contains 875,000 names, according to the most recent figures released this year by the U.S. National Counter-Terrorism Center.
Ibrahim’s attorney, Elisabeth Pipkin, told the court that the trial’s purpose was to clear her client’s name. “We want her completely out of the system,” she said.
The Obama administration maintains that the basic question of whether Ibrahim is on a watchlist or not is a “state secret,” and is hence privileged and confidential, even in a civil lawsuit against the government. The federal judge presiding over the lawsuit has sided with federal prosecutors so far.
But as the trial opened today, U.S. District Judge William Alsup was mulling whether to reveal whether the woman is on a list. The judge briefly closed the courtroom to the nearly dozen onlookers in the wooden gallery as government lawyers and the woman’s counsel haggled over the issue behind closed doors.
“I don’t know the answer for sure on this one,” Alsup later said in open court.
“At this point in the litigation, no court has attempted to determine the merits of Ibrahim’s claims under the First and Fifth Amendments. The parties have not briefed whether her placement on a terrorist watchlist violates her rights to freedom of association, equal protection, and due process,” the appeals court wrote.