Long-withheld document provides insight into secretive system in which people can be placed on terrorism databases with astounding ease, and without any way to get off
The US government made more than 450,000 nominations for inclusion on its watchlist in 2013. Photograph: Bogdan Cristel/Reuters
Placement on a terrorism watchlist is a life-changing event. Your travel is monitored and in many cases restricted. If overseas, you could be stranded, costing your employment or reunion with your family. You could be detained and, certain lawsuits allege, tortured by foreign governments.
Yet the ease with which someone can be placed on US watchlists and terrorism databases contrasts markedly with the impact placement has. A long-withheld document published on Wednesday by the Intercept detailing the guidelines for placement shows that the standards for inclusion are far lower than probable cause, and the ability for someone caught in the datasets to challenge their placement do not exist. 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.
The rise – and the low standards the Intercept documented – is partially explained by the near-miss airliner bombing in Christmas 2009, by a man connected to a Yemeni branch of al-Qaida. Partially it is explained by the overwhelming secrecy surrounding the process: attorney general Eric Holder has called it a state secret (although the guidance document itself is unclassified), preventing meaningful outside challenges that would recalibrate a balance between reasonable expectations of security and liberty.
That secrecy, as the Intercept's publication indicates, is starting to erode – slowly. Recent court cases have given the beginnings of insight into how the US government's apparatus of terrorism databases and watchlists works in practice. Here is a guide.
They're reading your tweets
The watchlisting guidance says that "first amendment protected activity alone shall not be the basis" for nominating someone to the lists. The key word: alone. What you say, write and publish can and will be used against you. Particularly if you tweet it, pin it or share it.
The guidelines recognize that looking at "postings on social media sites" is constitutionally problematic. But those posts "should not automatically be discounted", the guidelines state. Instead, the agency seeking to watchlist someone should evaluate the "credibility of the source, as well as the nature and specificity of the information". If they're concerned about a tweet, in other words, they're likely to go through a user's timeline. That joke about that band blowing up could come back to haunt you at the airport.
Where you go might get you placed on the list – and then stranded
Contained within the guidance is a potential reason why many US Muslims find themselves abruptly unable to return from trips abroad without explanation. An example given of "potential behavioral indicators" of terrorism is "travel for no known lawful or legitimate purpose to a locus of TERRORISM ACTIVITY". Not defined: "lawful", "legitimate" or "locus". That could mean specific training camps, travel to which few would dispute the merits of watchlisting. Or it could mean entire countries where terrorists are known or suspected of operating – and where millions of Americans travel every year.
The guidelines themselves, in that very section, warn that such behavioral indicators include "activity that may have innocent explanations wholly unrelated to terrorism". It warns analysts not to judge any circumstance "in isolation".
What happens on the no-fly list does not stay on the no-fly list. A federal judge, writing in June, noted that the FBI's Terrorist Screening Center shares information on banned passengers with 22 foreign governments as well as "ship captains", resulting in potential "interference with an individual's ability to travel by means other than commercial airlines".
Transportation Security Administration screeners check passengers as they prepare to board flights. Photograph: Joe Raedle/Getty Images
Many people who have sued the US government over the watchlists have reported being unable to return from travel abroad. Ali Ahmed, a US citizen in San Diego, attempted in 2012 to fly to Kenya to meet his fiancee for their arranged marriage. But first he flew to Saudi Arabia to make the religiously encouraged pilgrimage to Mecca; he found himself stranded in Bahrain after he was unable to enter Kenya. Ayman Latif, a disabled US marine originally from Miami who now lives in Egypt, was prevented from flying to the US for a disability evaluation from the Department of Veterans Affairs.
There's room for the family (and perhaps your friends)
A precursor data set that feeds the Terrorist Screening Database (TSDB or, "the watchlist") is the Terrorist Identities Datamart Environment, or TIDE, maintained by the National Counterterrorism Center. TIDE contains records of known or suspected international terrorists. It also contains information on their families and perhaps their friends.
"Alien spouses and children" of people NCTC labels terrorists get put into TIDE. They "may be inadmissible to the United States", presumed to be dangerous. TIDE also contains "non-terrorist" records of people who have a "close relationship with KNOWN or SUSPECTED terrorists", the guidance reads. Examples listed are fathers or brothers, although the guidance does not specify a blood or marital relationship as necessary for inclusion. Those people can be American citizens or noncitizens inside the United States. While those "close relation[s]" are not supposed to be passed on for watchlisting absent other "derogatory information", their data may be retained within TIDE for unspecified "analytic purposes".
Just because a jury finds you innocent doesn't mean watchlists agree
The guidelines explicitly state that someone "acquitted or against whom charges are dismissed for a crime related to terrorism" can still be watchlisted. A federal official nominating such a person for inclusion on the list just needs "reasonable suspicion" of a danger – something defined as more than "mere guesses or hunches", based on articulable information or "rational inferences" from it, but far less than probable cause. A judge or jury's decision is not controlling.
Watch how you walk
In keeping with a general enthusiasm exhibited by law enforcement and the military for identifying someone based on their seemingly unique physical attributes, biometric information is eligible as a criteria to watchlist someone. Several of those biometric identifiers are traditional law enforcement ones, like fingerprints; others are exceptionally targeted, like DNA. Then there are others that reflect emerging or immature analytic subjects: "digital images", iris scans, and "gait" – that is, the way you walk.
Gait and other biometric identifiers do not appear sufficient to watchlist someone. But they are sufficient to nominate someone to the watchlist or TIDE, provided they rise to the "minimum substantive derogatory standards" – articulable reasons for suspecting someone of involvement of terrorism, a far lower standard than probable cause – unless they come accompanied with evidence that the manner of walk in question includes "an individual with a defined relationship with the KNOWN or SUSPECTED terrorist". It does not appear that a particular swagger by itself can be watchlisted.
Barack Obama consults his homeland security adviser, Lisa Monaco, in the Oval Office.Photograph: White House
Lisa Monaco is a former US attorney who holds one of the most powerful and least accountable positions in the US security apparatus: assistant to the president for homeland security and counter-terrorism. She has enormous influence over the watchlisting system.
The guidelines empower Monaco, her successor or a designee to make a "temporary, threat-based upgrade" to "categories of individuals" already watchlisted. The intent appears to be the creation of a single government official able to rapidly keep people off airlines once threat information, often fragmentary and rarely specific, emerges to indicate an imminent terrorist attack. It is unclear what characterizes a "category". The White House says she has never exercised the power.
Monaco, like others holding her position, does not answer to Congress. No Senate confirms her. Anyone who tries to obtain her official communications will face a legal defense of executive privilege. It appears commensurate with the extraordinary if inconsistent secrecy surrounding watchlisting – attorney general Eric Holder said the procedures were a state secret even as the guidelines outlining them are not classified – that she and not a Senate-confirmable appointee makes the upgrading decision.
An administration official declined to confirm authenticity of the document, but said Monaco has never exercised any such temporary authority. The administration did not say why she and not a cabinet official or subordinate has those powers in the first place.
You can be turned into an informant (or punished if you refuse)
Keeping track of suspected terrorists may not be the only purpose the watchlisting system serves. Recent lawsuits allege that the FBI uses it to as leverage to turn people into snitches.
A 30-year-old Afghan American, Naveed Shinwari, found that after FBI agents questioned him about his 2012 travel to Afghanistan – he was getting married – he couldn't obtain a boarding pass he needed for an out-of-state job interview. Soon he found himself talking to other FBI agents, who wanted to know if he knew anyone "threatening" his community in Omaha, Nebraska.
"That’s where it was mentioned to me: you help us, we help you. We know you don’t have a job; we’ll give you money," Shinwari, who is suing over the apparent quid pro quo, told the Guardian in April.
Similarly, in Oregon, a man named Yonas Fikre is suing the government for allegedly attempting to parlay his no-fly list placement into getting him to infiltrate a prominent Portland mosque. After Fikre declined, he claims, he traveled to the United Arab Emirates, where he was detained, beaten on the soles of his feet and placed in "stress positions" – all, he says, while his torturers asked him questions about the Portland mosque that were suspiciously similar to those the FBI asked.
Effectively, said Gadeir Abbas, attorney for the Council on American-Islamic Relations, the watchlists "provide law enforcement with an extra-judicial tool to impose consequences on predominantly Muslims who choose to exercise their rights instead of becoming informants."
So much for that job
Being unable to travel is in some ways more invasive than other forms of surveillance. Unless your friends spend their time digging through court records, they will be unlikely to find out that, say, your assets were frozen, even you suddenly can't pay for dinners. Not all jobs ask about or care about an arrest.
Traveling is different. Being unable to travel on short notice is what Abbas calls a "publicly accessible fact" – that is, something your friends, family and co-workers will learn about in time. His client Gulet Mohammed is an information-technology professional in northern Virginia. "Not allowing him to be able to cover great distances in a short amount of time, that has a dramatic impact on what his prospects are," Abbas said.
Earl Knaeble IV, an army veteran from California, alleges in a lawsuit that he lost a job offered to him after he was unable to return to the US for a pre-employment medical exam after he got married in Colombia. He attempted, unsuccessfully, to drive home.
You can't get off – yet
There is no procedure to challenge and reverse your status on the no-fly list, the terrorism watchlist or TIDE. Inclusion on any is not typically disclosed – making legal remedies difficult – nor does the government provide any process for removal. 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. Procedures that will, identified within the guidance, are exclusively internal government processes.
"The only way to get off the federal watchlist is through the beneficence of a federal agent, routinely coupled with some form of cooperation with the FBI," Abbas said.
But that lack of redress has now imperiled the no-fly list. Last month, in a federal judge in Oregon ruled that the inability of individuals to extricate themselves from the list is a due-process violation, rejecting the government's contention that there is no constitutional right to travel.
"Such an argument ignores the numerous reasons that an individual may have for wanting or needing to travel overseas quickly, such as the birth of a child, the death of a loved one, a business opportunity or a religious obligation," judge Anna Brown found.
Yet the legal battle over the no-fly list is practically certain to continue. Nor does Brown's ruling touch on the broader watchlists and datasets from which the no-fly list draws.
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