Privacy SOS

Obama’s loosening of watch-list guidelines makes the US less safe

The US government’s surveillance and watch-listing systems do not only imperil open society, hurt innocent people, and undermine democratic norms—they actively threaten public safety.

Thankfully, someone courageous inside the sprawling US spy bureaucracy was apparently fed up about this disastrous policy, and so gave the watch-listing guidelines to The Intercept’s Jeremy Scahill. (Unsurprisingly, the Obama administration had fought tooth and nail to keep them secret.) Scahill and Ryan Devereaux report on the 166 page document:

The Obama administration has quietly approved a substantial expansion of the terrorist watchlist system, authorizing a secret process that requires neither “concrete facts” nor “irrefutable evidence” to designate an American or foreigner as a terrorist.

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 the government is tracking onto the no fly and selectee lists. It broadens the authority of government officials to “nominate” people to the watchlists based on what is vaguely described as “fragmentary information.” It also allows for dead people to be watchlisted.

In addition to expected crimes, such as assassination or hostage-taking, the guidelines also define destruction of government property and damaging computers used by financial institutions as activities meriting placement on a list. They also define as terrorism any act that is “dangerous” to property and intended to influence government policy through intimidation.

In the last five years, the government has added 1.5 million people to its terror watch-list. The Obama administration doubled down on the failed watch-list policy after a Nigerian man boarded a flight bound for the United States with a bomb in his underwear. Subsequent to that Christmas Day 2009 failed attempt, the White House implemented new guidelines allowing for additions to the terror list based on a single source tip. That is, one person’s negative comment about you could then (and can now) lead to your secret placement on a watch list. As the newly disclosed guidelines reveal, that tip does not have to be corroborated as fact—in short, no evidence is required before the government designates you a terrorist.

The Obama policy shift is confounding on its face, but especially given the facts in the Umar Farouk Abdulmutallab case. The young Nigerian, after all, was already on a terror watch-list when he boarded a flight to the United States. Likewise, Tamerlan Tsarnaev was included in a terror database when he traveled to Dagestan and returned to the United States in January and June 2012—just months before he allegedly blew up the Boston Marathon. Officials at the airport were notified when Tsarnaev intended to fly back to the United States; they simply didn't act on the information.

Both of these accused terrorists were on government terror lists; both had no problem boarding planes to the United States despite their placement on these lists. Ergo, the problem with US security failures in both cases had literally zero to do with watch-lists.

The government’s terror watch-listing system is terrifyingly Kafkaesque. You don’t know if you’re on it until you cannot fly, or until a police officer accidentally slips up and reveals that the government considers you to be a terrorist. The federal government won’t confirm or deny if you’ve been added to or removed from the list. No evidence of criminal activity is required before unnamed agents add you to it. Executive branch officials can put entire categories of people on the list, with zero outside oversight.

Most people will probably never know the government considers them a terrorist. But even local police have access to these databases, meaning that routine traffic stops might mean something very serious to the officer pulling you over, completely unbeknownst to you. Tens of thousands of people have access to the lists, including people working for "private entities"—likely spy and war contractors, and perhaps even financial institutions.

As former FBI counterterrorism agent David Gomez told The Intercept, the guidelines allow the government to label anyone a terrorist, for no good reason whatsoever. “If reasonable suspicion is the only standard you need to label somebody, then it’s a slippery slope we’re sliding down here, because then you can label anybody anything,” he said. “Because you appear on a telephone list of somebody doesn’t make you a terrorist. That’s the kind of information that gets put in there.”

That policy doesn’t just imperil our rights. It also makes it much less likely that government will be able to identify truly dangerous people.

The watch-list bloat that results from the authoritarian watch-list policy might have contributed to the public safety failures that led to events in Boston. Officials told congressional investigators that Tsarnaev didn’t set off alarms at the airport because so many people are on terror lists. The pings alerting agents to listed people fade into a monotonous background noise, they seemed to be saying. It’s the Peter Cries Wolf of the terror surveillance complex age. So many alerts, so little time.

Obama expanded the watch-list system in the wake of the Christmas Day bomb attempt, but he was addressing a problem that didn’t exist. Abdulmutullab was already on a government watch-list. He simply wasn’t stopped before he boarded a plane to the United States. Like the failures before the Boston Marathon, these were personnel or management problems, not evidence of intelligence or profiling failures.

As Scahill and Devereaux remind us, in 2012 the Government Accountability Office published a report stating that there’s no responsible agency in government tasked with determining “whether watchlist-related screening or vetting is achieving intended results.” But we really don’t need someone in government to tell us what’s clear as day from the publicly available information:

Adding more innocent names to these government lists endangers the public. Anyone confused about that only need to look at the Abdulmutullab and Tsarnaev cases for evidence.

© 2021 ACLU of Massachusetts.