A new report from the American Civil Liberties Union highlights the “massive watchlisting system” in the United States, which “risks stigmatizing hundreds of thousands of people, including American citizens, as “known or suspected terrorists.”
The report outlines what is known about a system based on “secret standards and secret evidence, without a meaningful process to challenge error and clear” the names of individuals placed on the lists. It aims to put focus on a system that violates constitutional rights, a reality which Congress and President Barack Obama’s administration should not be permitted to ignore.
More can be said about what is not known than what is known. Hugh Handeyside, a staff attorney with the ACLU National Security Project who helped write the ACLU’s report on terrorist watchlists, said, “When it comes to two of the most prominent watchlists, the No Fly List and the Selectee List, we don’t know the standards that are used for placing people on those lists. So the standards are secret in addition to the evidence itself [the evidence used to put people on the lists].”
Specifically, the report explains that it is known “additional derogatory requirements” are necessary for a person to be placed on a list, but, beyond that, what is required to be included in the Terrorist Screening Database (TSDB), from which information flows to watchlists, is unknown. The government refuses to disclose information related to this process.
“How the various nominating agencies interpret the standard(s) for nomination, how widely those interpretations vary across the intelligence community, or whether any agency has issued guidance elaborating on the standard(s),” is also considered a “state secret.”
The FBI’s Terrorist Screening Center (TSC), which is the “hub of the system” of watchlists, will not disclose how it interprets the term “terrorism.” The Government Accountability Office has acknowledged “agencies utilizing watch list records recognize various definitions of the term.” And how personnel are trained at agencies on when to nominate individuals for watchlists is secret too.
Worse, individuals who know they are on the list have no meaningful way to contest their placement. They also do not get to know if they were on the list or not. When a person writes a letter complaining about their placement to the Department of Homeland Security Traveler Redress Inquiry Program (DHS TRIP), the response never reveals if the individual “is, or ever was, on a watchlist, or any reasons for the individual’s status.”
It will only state, “We have conducted a review of any applicable records in consultation with other federal agencies as appropriate, and it has been determined that no corrections or changes are warranted at this time.”
The ACLU has brought a lawsuit challenging the No Fly List in Oregon. It was filed on behalf of “10 US citizens and permanent residents who cannot fly to or from the US or over American airspace because they are on the government’s secretive No Fly List.” Four of the plaintiffs are US military veterans, who were never told “why they are on the list or given a reasonable opportunity to get off it.”
The court decided in August 2013 that there were constitutional rights implicated by aspects of the watchlisting system and, on March 17, there will be oral argument over whether the process violates the Fifth Amendment, which guarantees citizens the right of due process.
What the ACLU hopes for is an outcome that will lead to the establishment of a meaningful process that allows people included improperly on the list to contest their inclusion.
Multiple cases have been brought against the No Fly List. Often, in these cases, litigation is subject to closed proceedings and sealed filings. It prevents the public from bearing witness to how attorneys are fighting to protect constitutional rights in face of gross government secrecy. But the case of Rahinah Ibrahim recently showed that challenges to watchlists can take place without posing threats to “national security,” as the government likes to claim.
In the ACLU report, Ibrahim’s case, which was decided on January 14, is briefly described:
Rahinah Ibrahim, a Stanford PhD student and Malaysian citizen, was prevented from boarding a flight in San Francisco, handcuffed (despite being wheelchair-bound at the time), and held in a detention cell for hours in January 2005 based on what turned out to be a bureaucratic error by the FBI that placed her on the No Fly List. The government fought to avoid correcting the error for years, even invoking the state secrets privilege in an unsuccessful effort to prevent judicial scrutiny. She was permitted to leave the country, but to this day, she has been barred from returning, even though the government admits that she should not have been placed on the No Fly List.
Handeyside said the significance is that, while the outcome was specific to what happened to Ibrahim and did not involve a remedy to protect all citizens’ rights, a federal judge did rule that “redress procedures are inadequate and do not meet constitutional muster.”
While unmentioned in the ACLU’s report, another ruling occurred on January 22. US District Judge Anthony Trenga allowed a lawsuit by Gulet Mohamed, a young Somali American, to go to trial. The judge found that putting a citizen on the No Fly List “labels an American citizen a disloyal American” and placement can be “life-defining and life-restricting across a broad range of constitutionally protected activities and aspirations.” It “transforms a person into a second-class citizen, or worse.”
Here are some other examples of Americans who found out they were on the No Fly List, as noted in the ACLU’s report:
Marine veteran Abe Mashal’s inclusion on the No Fly List made it impossible for him to work for clients of his specialized dog training business who lived beyond driving distance, resulting in the loss of significant business income. FBI agents told Mashal that he would be removed from the No Fly List if he agreed to become an informant.
Steven Washburn, an Air Force veteran and New Mexico resident, was prevented for years from being with his wife—a Spanish citizen who was unable to secure a visa to travel to the United States—because of his status on the No Fly List.
Kevin Iraniha, an Iranian-American peace activist, was barred from flying home to San Diego from Costa Rica, where he was studying at the UN-accredited University for Peace. Iraniha and his father, both of whom were told they had been placed on the No Fly list, endured hours of interrogation on their religion, Iraniha’s travel to Muslim countries, and his views on Palestine and U.S. foreign policy.
In April 2012, inclusion on the No Fly List prevented Air Force veteran Saadiq Long from flying from Qatar to his childhood home in Oklahoma to visit his mother, whose health had been deteriorating due to congestive heart failure.
A person who finds out they are on the No Fly List has to live as if they are a suspected terrorist. They can’t take commercial flights. They may face a long-term investigation that includes detention, interrogations and intrusive surveillance. If on the Selectee List, they will be subjected to additional screenings and asked questions every time they try to board flights. Leaving the United States is risky because they may not be allowed to reenter.
The FBI may be involved in investigating them. It may become difficult to get a job, pursue education and/or maintain relationships with family or friends. And, abroad, a person can be subjected to becoming FBI informants or else their name won’t be taken off the No Fly List.
As Handeyside put it, “The end result of a series of government policies and pervasive government secrecy is the denial of people’s constitutional rights in a number of contexts when it comes to watchlisting.”
“The Congress and the [Obama] administration really need to take a hard look at this overall system and that is what this report is meant to underscore,” he concluded. “It’s not just restricted to any particular watchlist. It’s a system and a fundamentally broken system.”