Graphic from 2013 Watchlisting Guidance published by The Intercept

A secret United States government rulebook for placing “known terrorists” and “suspected terrorists” on government watchlists, including the No-Fly List, has been published by The Intercept. It was obtained from an unnamed “intelligence source.”

The “March 2013 Watchlisting Guidance” [PDF] from the National Counterterrorism Center (NCTC) contains the criteria by which officials can blacklist individuals for “terrorism.” It also reveals some glaring loopholes, which give officials wide discretion to place people on lists who are probably entirely innocent.

The watchlist commonly referred to in the guidance is derived from data stripped of classified information and put in the Terrorist Screening Database (TSDB) managed by the Terrorist Screening Center of the FBI. There also is a Terrorist Identities Datamart Environment (TIDE) database. This is where the TSDB gets its data.

TIDE is the government’s largest database, and it is controlled by the NCTC and the information is from military and intelligence sources from all over the world.

Much of the watchlisting guidance is vague, giving officials wide discretion to make designations. As Jeremy Scahill and Ryan Devereaux of The Intercept report, the guidance requires the the “nominator”—the “federal department or agency that has information to indicate that an individual meets the criteria for a known or suspected terrorist”—to meet a “reasonable suspicion standard.”

The “totality of circumstances” can form the basis of deciding if “articulable intelligence or information” meets the standard. “Rational inferences from those facts” can be made to determine if a person really is “known or suspected to be or has knowingly engaged in conduct constituting, in preparation for, in aid of, or related to terrorism and/or terrorism activities.”

“Although irrefutable evidence or concrete facts are not necessary, to be reasonable, suspicion should be as clear and as fully developed as circumstances permit,” the guidance states. In other words, confirmation bias, prejudices or hunches can be presumed to play a key role in selecting individuals for placement on watchlists.

“As circumstances permit” can be the excuse or justification for placing a person on the list with a very minimal amount of information.

“Immediate family of suspected terrorists,” according to Scahill and Devereaux, such as “their spouses, children, parents or siblings,” may be placed on a list “without any suspicion that they themselves are engaged in terrorist activity.”

“Associates,” who have a relationship with a “suspected terrorist” but are not known to be involved in “terrorist activity” can be placed on a list. “Individuals with a possible nexus to terrorism” can also be placed on a list, even though officials may lack what is known as “derogatory information” or intelligence to support the fact that they are “terrorists” or persons involved in “terrorist activities.”

Officials also have the authority to place Americans and foreigners on watchlists for associating with a “terrorist group,” even if the group has yet to be designated as a terrorist organization by the US government. Plus, a person does not have to be a member or associate of a terrorist organization to be labeled a “representative” of that group.

“Non-Terrorist” records of “familial family members,” which sounds redundant and could probably mean whatever an official wanted it to mean, or “associates of known or suspected terrorists” can be put in the TSDB to assist DHS and the State Department with “adjudicating visas” and “immigration processing.”

Whole entire categories of people can be “temporarily upgraded” to a watchlist if there is “current and credible intelligence information or a particular threat stream that indicates a certain category of individuals may be used to conduct an act of domestic or international terrorism.” While officials are to consider the “anticipated impact on international and domestic travel, civil liberties and foreign relations,” one can still imagine how entire populations could be inappropriately targeted at times.

For example, after Umar Farouk Abdulmutallab, the “Christmas Day bomber,” attempted an attack on December 25, 2009, President Barack Obama decided to subject individuals from “countries of interest” to more thorough passenger screenings. The countries included: Cuba, Sudan, Syria, Iran (four countries on the State Department’s list of state sponsors of terrorism) and Afghanistan, Algeria, Iraq, Lebanon, Libya, Nigeria, Pakistan, Saudi Arabia, Somalia and Yemen. (Diplomatic cables released by Chelsea Manning showed that countries were deeply upset by essentially being labeled “terrorist countries.”)

So, in this situation, security agencies would have the authority to systematically target people by nationality.

The Intercept story notes, “Upgrades can remain in effect for 72 hours before being reviewed by a small committee of senior officials. If approved, they can remain in place for 30 days before a renewal is required, and can continue ‘until the threat no longer exists.’”

Officials are informed that “single source information” from social media is not to be “automatically discounted.” Also, in a list of potential behavior indicators that could lead to one being placed on a watchlist, one of the indicators is “travel for no known lawful or legitimate purpose to a locus of terrorist activity.”

If someone traveled to a country like Pakistan to get a degree in Islamic studies, it might be easy for an official to point to this line and place that individual on a No-Fly List.

When the “reasonable suspicion” standard is met, “sympathizers and supporters of a designated terrorist organization” may be watchlisted. “A sympathizer or supporter of terrorism should be nominated if the support is operational in nature. If support is merely ideological, the individual should not be nominated,” the guidance explains.

One is “operationally capable” when they undergo terrorist training, provide “some instruction,” including military training, to terrorist group, indicate “intent to participate in planning/conducting an attack,” express “desire to martyr him/herself,” have repeated contact with a “known terrorist facilitator who recruits or facilitates travel of operatives,” plans an attack alone or as part of a group or associates with a terrorist group or cell and is “accumulating weapons/explosives.”

While the guidance rarely gets specific, at one point the following example is given: “reasonable suspicion for watchlisting can be met based on the acquisition of documents/media identifying a person from the counterterrorism operation that targeted the residence of al Qaeda leader Usama bin Laden on May 2, 2011.”

Let’s say bin Laden liked to read a particular writer or journalist. Or, let’s say he paid close attention to a particular organization, like WikiLeaks or some other similar organization. Would the presence of persons’ names be enough to put them on a watchlist? From the watchlisting guidance, it certainly seems like officials would have the authority, even if that person has never even associated or sympathized with terrorists.

All former Guantanamo Bay prisoners can be automatically placed on the No-Fly List. According to Shayana Kadidal of Center for Constitutional Rights, this stems from a 2009 statute. Courts “dismissed the idea that this was an enduring consequence that should allow you to clear your name post-releaase because, even if you won before the habeas court, the government would not take you off the No-Fly List.”

The president has the authority to take a former Guantanamo prisoner off the list if he is willing to certify a prisoner as not being a “threat.” This creates a huge liability for a president, who does not want to be wrong if the person is taken off the list and then commits an attack. Still, more than half of 779 prisoners held in detention at Guantananmo never engaged in any hostile acts against the United States.

Finally, dead people can be put on the list and terrorists can remain on the watchlist, even if their dead. From the Intercept story:

Not even death provides a guarantee of getting off the list. The guidelines say the names of dead people will stay on the list if there is reason to believe the deceased’s identity may be used by a suspected terrorist–which the National Counterterrorism Center calls a “demonstrated terrorist tactic.” In fact, for the same reason, the rules permit the deceased spouses of suspected terrorists to be placed onto the list after they have died.

It is all perfectly reasonable until one considers that people who are alive and have the same names as dead “suspected terrorists” could easily be stopped quite often when traveling because the government won’t remove “terrorists” who are known to be dead (maybe even after a drone strike) from their watchlists.

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There are a few general points to make in order to fully understand what this vague criteria for watchlisting means.

First of all, it is important not to ignore the anti-Muslim racism that likely influences a number of aspects of the watchlisting process. The idea that Muslims are “predisposed” to commit acts of violence is pervades the national security establishment. Training materials on fighting terrorism have been used by government agencies in previous years that deal with theories of “radicalization” and such training promotes prejudice, as evidenced by the fact that one NSA official used the slur “Mohammed Raghead” in an NSA memo.

Second, a federal district court in Oregon recently decided violated due process rights of Americans placed on the No-Fly List because it is nearly impossible to challenge inclusion and clear one’s name. The ACLU represented thirteen Americans, who have never engaged in any terrorist activity, in this case. Each person experienced hardship because they ended up on the No-Fly List.

The guidance shows why there needs to be a process established for getting off watchlists, especially the No-Fly List.

Finally, there is absolutely no reasonable justification for why this rulebook and any version of it from 2001 to 2014 should be secret. The watchlisting guidance is marked “unclassified.” There is nothing in it that will endanger any Americans.

Notice that the spokesperson for the NCTC makes no claim about threats to “national security” if this rulebook is disclosed:

…In a statement, a spokesman for the National Counterterrorism Center told The Intercept that “the watchlisting system is an important part of our layered defense to protect the United States against future terrorist attacks” and that “watchlisting continues to mature to meet an evolving, diffuse threat.” He added that U.S. citizens are afforded extra protections to guard against improper listing, and that no one can be placed on a list solely for activities protected by the First Amendment…

It does not impair the ability of the government to fight the real or imagined threat of terrorism if the world knows the criteria by which “terrorists” are watchlisted. However, it does expose the government to scrutiny for a process that is riddled with problems and routine examples of persons having their rights violated because information that gets into the TIDB is considered “presumptively valid.”

This version only begins to answer questions and probably raises more questions. More documents containing guidance should be released so that the public can have a better understanding of what government is really doing when it lists people as “terrorists.” And the source who provided this is to be commended for taking a risk and passing this on to the news media organization so there could be some transparency.