According to a civil lawsuit made public last week, the U.S. government has added more than 1.5 million names — not individuals — to its Terrorist Watchlist in the last five years. This has sparked concern among many human rights organizations and advocacy groups, who say that the government has become too aggressive in its efforts to keep the American public safe.
“The amount of names added to the list is really startling,” said Gadeir Abbas, a staff attorney with the Council on American-Islamic Relations who has represented “dozens” of Americans on the no-fly list.
Abbas told MintPress News that the number of names on the watch list is counterproductive to the goals of the watch list, as law enforcement are now more concerned with adding names to the watch list or checking to see if someone is in the database, than engaging in “traditional criminal investigations that uncover wrongdoing.”
Watch-listing warps the mentality of law enforcement agents, Abbas says, and pushes agencies tasked with protecting the American public toward more activities related to intelligence collection instead of criminal investigations.
One of Abbas’ clients, Gulet Mohamed, a 21-year-old U.S. citizen from Alexandria, Virginia, discovered he was on a watch list in 2011, when he was told he would not be allowed to travel back to the United States after a trip to Yemen and Somalia — his country of origin. Mohamed was never charged with a terror-related offense or any other crime, which is why he is fighting his inclusion on the list.
Abbas says the number of innocent people on the list, like Mohamed, is probably extremely high because the Terrorist Screening Center, the agency responsible for determining who is on the Terrorist Watchlist, accepts 98.96 percent of all nominations to the list.
Abbas told MintPress he asked the TSC what made them reject 1.04 percent of the nominations from federal agencies, but the agency was unable to answer the question. According to the attorney, the TSC told him the electronic form agents fill out when nominating a person for inclusion on the list includes a text box where agents are required to give a reason for the rejection. But Abbas said he was told that the reason given in the text box may not actually be the real reason for a person’s exclusion from the list.
Of those included on the watch list, many are actually not suspected of being known terrorists, but are known as “non-investigative subjects.” In other words, the federal government is, as Abbas says, “literally putting people they decided not to investigate on the federal government watch list” — a matter Abbas said all American should find disconcerting because it’s proof that the “government is playing games with folks.”
“If you cannot charge someone with a crime and are not actively investigating them, they shouldn’t be on a watch list,” Abbas said. “Either investigate and charge people or leave them alone.”
Can’t take my eyes off of you…
Watch lists may not have been part of Americans’ daily vocabulary prior to Sept. 11, 2001, but they have actually existed for years — including most notably during the “Red Scare” of the 1950s. The main difference between watch lists of yesteryear and the current Terrorist Watchlist is that before 9/11, law enforcement agencies had their own watch lists and didn’t necessarily share who they were monitoring with other agencies.
Some say that the terrorist attacks on the World Trade Center and Pentagon largely occurred due to a lack of communication between intelligence and law enforcement agencies, as three of the hijackers had been flagged for suspicious activity by some agencies, but the agencies had never shared that information with each other. For example, three 9/11 hijackers — Mohammed Atta, Ziad Jarrah and Hani Hanjour — were flagged by local or state law enforcement agencies, but the CIA’s suspicions of the three individuals were not shared with any other agency, including the FBI.
If the agencies had shared their concerns about the men, some intelligence officials argue that 9/11 could have been entirely prevented, or at least limited.
Per the recommendation of the 9/11 Commission, under the Intelligence Reform and Terrorism Prevention Act of 2004, the Information Sharing Environment agency, also known as ISE, was created and tasked with sharing information among law enforcement, intelligence agencies and foreign affairs specialists — all in the name of national security.
Created in 2003, the TSC is responsible for overseeing the post-9/11 consolidated Terrorist Watchlist, which has various secondary watch lists — most notably, the no-fly list. The agency is also tasked with ensuring that people are not included on the watch list based solely on race, ethnicity, national origin, religious affiliation or other First Amendment-protected activities such as speech, the exercise of religion, press, peaceful assembly or petitioning the government for redress of grievances.
The bulk of the concerns, however, rest in the fact that most people have no idea of their inclusion on the Terrorist Watchlist until they are unable to fly on an airplane, receive additional screening at the airport or are questioned more during a routine traffic stop, among other issues. Further, by the time someone learns he is on a watch list, there’s no real way for him to contest his inclusion on the list, as the federal government refuses to acknowledge whether or not an individual is truly on the list, citing national security reasons.
Abbas says that outside the Muslim community, the American public is not necessarily aware of how expansive the Terrorist Watchlist has become. Throughout the past four or five years, he continues, the watch list has increasingly been discredited, as several news reports have chronicled how the FBI abuses its authority with the list.
Part of the reason the Muslim community is largely aware of the abuse of power with the watch list is because of those who have filed a lawsuit alleging that they were wrongly placed on the watch list’s no-fly sublist, almost all have been Muslim, someone who could be mistaken for being a Muslim or someone who traveled to countries where Islam is the majority faith.
Abbas says it is “absolutely critical” that the American public supports the “legal tradition of questioning secret watch lists that impose consequences” and ultimately negatively impact the lives of those on the list even though these Americans are not charged with or convicted of any crime.
For instance, Gulet Mohamed is not able to travel to Mecca for a religious pilgrimage — an important trip for those who practice Islam. Others have had to find new careers that don’t require air travel, while weddings have been called off and family reunions have been cancelled.
Additionally, those on the watch list are often isolated by those in their community, as Abbas says there is a notion that they “are a danger to America,” especially if they are Muslim, as there are many conspiracy theories floating around that Muslims are attempting to overthrow the American way of life and implement strict Islamic-based rules.
Even if someone on the watch list is not of the Islamic faith, people often don’t want to associate with those on the watch list for fear that they might also be added to the list, since associating with a “terrorist” is given as a reason by the U.S. government as why someone would be included on the list.
It’s this fear of being illogically added to the watch list that Abbas says proves the list is illegal. The federal government can’t simply designate someone as a terrorist without notifying them or allowing them to prove otherwise, he says, since that violates the due process rights awarded to Americans by the Fifth and Fourteenth Amendments of the U.S. Constitution.
Lack of accountability
According to the FBI, the TSC “regularly conducts comprehensive and case-specific quality assurance reviews of its data to ensure…the records maintained in the Terrorist Screening Database are current, accurate and thorough.”
The agency reportedly updates the list daily and shares the Terrorist Screening Database with federal, state, local, territorial and tribal law enforcement and intelligence community members, as well as international partners, but since TSC cannot confirm or deny if someone is on a list, it’s difficult to know whether this list is truly and accurately audited on a regular basis.
This lack of accountability is a point of concern, as Abbas says the government has never had this kind of unaccountable authority before, especially when it comes to the no-fly list. He further points out that the list is historical in nature, since this is the first time there has been a restriction on movement for Americans — there was never a “no-boat” or “no-train” list.
In an email to MintPress, Anya Bernstein, an associate professor at SUNY Buffalo and author of “The Hidden Costs of Terrorist Watch Lists,” says that Americans should be concerned about these watch lists, even if they are not currently affected, because there is “virtually no external oversight” of who is on the list or agency accountability associated with the lists allowing those who are “irrelevant” to national security to remove themselves from the list.
Some may argue that having a few extra names on the list is not that big of an issue, but Bernstein argues otherwise.
“Having irrelevant people on these lists is not something harmless, like receiving a couple of pieces of junk mail that you can throw out. It actually places us in danger, because the avalanche of irrelevance distracts agents from actual dangers. It’s not a couple of pieces of junk mail, it’s hundreds of thousands of spam emails cluttering up your inbox, making it hard to spot the important stuff,” she wrote.
Though no one likes to learn that they were wrong or to admit that they were wrong, Bernstein speculates that if the government continues to recognize the inaccuracies in its “danger-spotting abilities,” there will only be more clutter on these watch lists, making it more difficult for agents to focus on actual threats.
Meanwhile, a Terrorist Watchlist with millions of names gives the impression that terrorist attacks are not only likely to occur, but would be devastating to multiple facets of American life. However, Bernstein says that based on actual investigations of terrorism in the U.S., “terrorist attacks are not very likely to occur in America, and the ones that are likely to occur are not catastrophic.”
According to the FBI, there’s a lot of confusion surrounding the number of people on the list. Although the Terrorist Watchlist contains more than one million “terrorist identities,” the bureau explains, there are only around 400,000 or so individuals on the list, as the watch list contains all aliases for a suspected terrorist. For example, if a suspect uses two different names and three different dates of birth, that would generate six “terrorist identities,” but they’re all only for one person.
Abbas agrees that it’s conceivable that there may be fewer individuals on the list because of the aliases, but he says that even when taking that into consideration, the number of people on the list is too high for it to be useful.
Terrorism: The biggest threat to the U.S.?
One reason Bernstein says some Americans have been so willing to allow the federal government to collect their personal information, electronically surveil them and allow large numbers of people to be put on watch lists, is because many believe that terrorism is the most pressing and serious threat facing Americans today.
Since terrorism is not as great of a threat to the U.S. as the government has made it out to be, Bernstein argues that the resources used on these “highly unreliable” watch lists are not worth it.
In her law review article “The Hidden Costs of Terrorist Watch Lists,” Bernstein points out that in 2012, the Department of Homeland Security “detained and refused entry to two British nationals en route to Los Angeles because the agency concluded that the couple’s Twitter messages suggested they were planning to engage in terrorist activity.”
But as Bernstein notes, the “terrorist activity” the two Brits tweeted about included digging up Marilyn Monroe’s grave and “destroy[ing] America,” which is slang for “party.”
“[W]e’re spending a lot of money on something, but we don’t know how it works, we don’t know whether it works, and we don’t know how to improve it,” Bernstein told MintPress. “This begins to look pretty irrational. That irrationality could be greatly reduced if the agencies that run watch lists began implementing self-assessment programs that would allow both the government and the public to assess the efficacy of the watch lists.”
Abbas disagrees that oversight and increased transparency provide the solution to the problems with the watch lists. Instead, he argues that the entire watch-listing project is a problem and proposes that instead of a no-fly list, the intelligence community should opt to pat down a truly suspicious traveler extensively before he or she boards an airplane or have the suspicious passenger travel accompanied by a member of the Federal Air Marshal Service.
In addition to targeting innocent Americans, Abbas says the no-fly list has proven to be ineffective. Those who truly want to get on a plane would likely come up with a plan to circumvent the no-fly list, he says, noting that while Umar Farouk Abdulmutallab, the “Underwear Bomber,” was on the no-fly list, Faisal Shahzad, the man behind a 2010 attack on Times Square, was not.
As Americans begin to legally challenge the constitutionality of the watch lists, especially the no-fly list, the courts are ruling that these lists are a violation of the U.S. Constitution, as due process rights are so heavily violated.
Abbas points out that U.S. District Judge Anthony Trenga, who is overseeing Gulet Mohamed’s case, has not yet issued a ruling, but has pointed to the U.S. Supreme Court’s 1965 ruling, in which it decided that the Subversive Activities Control Board’s requirement that those associated with the Communist Party and other unfavorable organizations register with the U.S. Attorney General’s office was a violation of the Fifth Amendment.
Under the Fifth Amendment, an individual has the “right to remain silent” in order to avoid self-incrimination , which is what many associated with the Communist Party argued would happen if they would be forced to supply information to those who were investigating their activities. The court agreed.
The Supreme Court ruled then that the right to move about the world is so fundamental to Americans, that even at the peak of Communist hysteria, the courts didn’t deny people the ability to travel, Abbas said.
He added that the restrictions on where Americans can travel is unprecedented, but says he is encouraged that the American judicial system will hopefully change this “gross imposition” to Americans’ basic constitutional rights, especially in a post-Edward Snowden/National Security Agency revelations world.
MintPress asked the FBI and TSC to comment on this story, but our calls and emails were not returned. ISE said they have no comment on anything related to the watch list and directed us to speak with other intelligence agencies.