The “March 2013 Watchlisting Guidance” is a 166-page instruction booklet issued by “watchlist authorities” and used by the Transportation Security Administration (TSA) to determine who goes on the “selectee” and “no-fly” lists.
A selectee will experience “enhanced screening” at airports and borders, such as a strip search or an extended interview. A “no-fly” will be denied the ability to travel and may be unable to conduct foreign business that his livelihood requires. Even worse, he may be stranded abroad and detained by a foreign government.
The instruction guide is reprinted and analyzed by The Intercept in a July 23rd article entitled "Blacklisted: The Secret Government Rulebook for Labeling You a Terrorist." The Intercept is an online periodical co-founded in February by Glenn Greenwald in order to report on government documents released by Edward Snowden and others.
The article explains, “The new guidelines allow individuals to be designated as representatives of terror organizations without any evidence they are actually connected to such organizations, and it gives a single White House official the unilateral authority to place entire 'categories' of people” on lists.“
The “single White House official” refers to Lisa Monaco, assistant attorney general of the National Security Division of the Justice Department. The guide empowers her to make a "temporary, threat-based upgrade" in order to watchlist entire categories of people; this used to be called profiling.
How Does Someone Get on a Watchlist?
It is a secretive process that is impossible to thoroughly monitor. Nevertheless, two methods seem common.
1) A person's information goes into the Terrorist Identities Datamart Environment (TIDE), which is maintained by the National Counterterrorism Center (NCC). TIDE maintains information on known or suspected terrorists and on their family members, friends and other associates. After classified information is stripped out, an unclassified version goes to the Terrorist Screening Database (TSDB). A multitude of domestic agencies access this database – e.g. agencies responsible for Passports, Immigration and customs. 22 partnered foreign nations have access as well. TSDB is also used by domestic law enforcement; for example, every ID checked by a police officer is supposed to be matched against the database.
2) The NCC is responsible for publication of the “March 2013 Watchlisting Guidance.” But the guide was developed by 19 agencies, including the FBI, CIA, Department of Homeland Security, the Air Force, and the Pentagon. Presumably any of them can “nominate” someone into TSDB. Indeed, the guide states “all executive departments and agencies” are responsible for collecting and sharing such information.
The definition of a likely nominee is vague. Section 1.121 (p.10) of the guide defines terrorism to include acts that “appear intended to intimidate or coerce a civilian population, influence the policy of a government by intimidation or coercion….” [italics added] Four criteria are given for the designation of “terrorist.” The fourth requires only that the person be “operationally capable” of committing a terrorist act. One condition that satisfies this requirement is if the person is “traveling for no legitimate purpose to places that have TERRORIST training grounds” (p.53).
Nomination does not require evidence. Instead, the guide uses a “reasonable suspicion” standard. The suspicion can be based on posts on social media, such as Facebook (p.35), or upon one uncorroborated “fact.”
How is “reasonable suspicion” ascertained? The key section seems to be the arcanely named Chapter III: “Minimum Substantive Derogatory Criteria” (p.33). It states, “To meet the REASONABLE SUSPICION standard, the NOMINATOR [the nominating agency], based on the totality of the circumstances, must rely upon articulable intelligence or information which, taken together with rational inferences from those facts, reasonably warrants a determination that an individual is known or suspected to be or has been knowingly engaged in conduct constituting, in preparation for, in aid of, or related to TERRORISM and/or TERRORIST ACTIVITIES.” [Capitalization in original] No definition of “articulable intelligence or information” is offered.
Even if the reasonable suspicion standard is not met, family members of those on lists can be nominated as well. Associates are vulnerable even if they have no obvious involvement in terrorism. Perceiving them as “a possible nexus” to terrorism is all it requires. Also, if they are linked with a “terrorist group,” whether or not the group has been designated as such by the government, then the associates can be listed. They do not need to be members of the group. As long as the associates are considered “representatives” – as a defending lawyer or a sympathetic journalist might be – then they can be placed on a watchlist.
What Happens If You're Listed?
There are many implications, from police officers who match your ID to the obstruction of passports or visas, from foreign airports turning you away to domestic ones interrogating you.
The guide deals explicitly with the latter. Chapter V is entitled “Encounter Management and Analysis.” It opens by defining an encounter as anytime an agency or agent intersects with someone who is a “positive match,” “a potential match” or an “inconclusive match” to the TSDB list. (Confusingly, the guide later states “Chapter 5 is concerned only with positive matches…”)
Realistically, the most common encounters will be with TSA or border agents. The Guardian article explains, “In addition to data like fingerprints, travel itineraries, identification documents and gun licenses, the rules encourage screeners to acquire health insurance information, drug prescriptions, 'any cards with an electronic strip on it (hotel cards, grocery cards, gift cards, frequent flyer cards),' cellphones, email addresses, binoculars, peroxide, bank account numbers, pay stubs, academic transcripts, parking and speeding tickets, and want ads. The digital information singled out for collection includes social media accounts, cell phone lists, speed dial numbers, laptop images, thumb drives, iPods, Kindles, and cameras.” The list of gathered data also includes scuba gear, the titles of books carried, business cards, jewelry worn, details about pets, and “pocket litter” such as the stubs of old tickets.
The information is then shared with TIDE. In short, the government will have massive and intrusive data with which to monitor and further restrict you, your family and your associates. The consequences can be non-trivial
Consider the case of Gulet Mohamed who is currently bringing a lawsuit against Attorney General Eric Holder. Mohamed is a teenager who is a naturalized US citizen. Staying for an extended period with relatives in Kuwait, he attempted to renew his visa there but was detained and placed on a no-fly list instead. Imprisoned for a week, he claims Kuwaitee officials beat and deprived him of sleep in their pursuit of information. Three FBI agents later visited him to request he become an informant. Mohamed refused. A few weeks later, his family arranged for his release and return to the US but the no-fly designation prevented him from boarding the flight. After judiciary maneuvering, Mohamed departed Kuwait only to be interviewed for hours at Dulles Airport without recourse to a lawyer.
The list of people vulnerable to similar treatment grows in size daily. According to the Business Insider (July 23), the Mohamed case “revealed that the watch list had grown dramatically in the wake of the Detroit plot , with the government adding 1.5 million names since then.” The Guardian article adds, “In 2013, the government made 468,749 nominations for inclusion to the Terrorist Screening Database, up from 227,932 nominations in 2009; few are rejected.”
What Is Your Recourse If Listed?
Appendix 8 of the guide is entitled “Memorandum of Understanding on Terrorist Watchlist Redress.” Nevertheless, a blacklisted person currently has no way effective method to reverse the listing or to discover why it occurred. Inclusion in TIDE or no-fly lists is rarely even disclosed.
Another article in The Guardian (July 24) explains, “Travelers suspicious about why their attempts to fly were unsuccessful can launch a redress request through the Department of Homeland Security, but that process does not challenge inclusion on a watchlist or database, nor will even successful requests guarantee against future travel restrictions.”
The situation may be slightly changing due to developments in a recent lawsuit. In June, US District Judge in Oregon, Judge Anna Brown ordered the government to confirm that 13 Muslim plaintiffs were on a no-fly list and the reasons for their inclusion; none had been charged with a terrorist-related offense. Moreover, the government was ordered to provide an effective means by which the plaintiffs could appeal their inclusion. The lack of it was deemed to be a violation of due-process, which is a rejection of the government's argument that there is no constitutional right to travel.
Nevertheless, the government is bound to fight in court for years in order to maintain secrecy and control. Even if the plaintiffs ultimately prevail, the federal government is notorious for ignoring court orders. Most significantly, the Oregon decision does not address whether watchlists themselves are unconstitutional or otherwise legally invalid. They are going to be around for a very long time.
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