The Intercept Reveals The US Government's Guidebook For Declaring You're A Terrorist Or Putting You On The No Fly List
from the because-you-just-might-be-a-terrorist dept
We were happy last month to see that the process for getting off of these watchlists was declared unconstitutional, but the lawsuits over these watchlists suggest that they are prone to abuse and error. We were particularly disturbed to find out in a recent lawsuit that the US government actually has a secret exception to reasonable suspicion for putting people on the list.
The document released by The Intercept is quite revealing, and shows that President Obama has massively expanded the criteria for getting people onto the list. In fact, as the report notes, the President "quietly approved" an expansion "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.As you might imagine, given all the stories about people being put on various watchlists even though they're clearly not terrorists, the guidelines are crazy expansive:
The document’s definition of “terrorist” activity includes actions that fall far short of bombing or hijacking. 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.And obviously this goes way beyond just boarding (or not boarding) airplanes. As the report notes, if you're pulled over for speeding and the police run your name, if you're on the watchlist, the police will get a notification, leading them to automatically think that you're a suspected terrorist. The guidelines also contradict themselves directly. At first it says that:
To meet the REASONABLE SUSPICION standard, the NOMINATOR, 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.Okay. So you need to have a factual basis for reasonable suspicion, right? Wrong:
In determining whether a REASONABLE SUSPICION exists, due weight should be given to the specific reasonable inferences that a NOMINATOR is entitled to draw from the facts in light of his/her experience and not on unfounded suspicions or hunches. Although irrefutable evidence or concrete facts are not necessary, to be reasonable, suspicion should be as clear and as fully developed as circumstances permit.So, it can't just be a hunch. It has to be a really good hunch seems to be the lesson.
The report also likely reveals the "secret" exceptions to reasonable suspicion that the judge refused to reveal in the Rahinah Ibrahim case we wrote about. She was kept on the watchlist despite there being no reasonable suspicion. One of the exceptions is the "family member" loophole (which some had suggested was likely the issue in the comments to our story about Ibrahim). But it appears the exceptions are much broader:
There are a number of loopholes for putting people onto the watchlists even if reasonable suspicion cannot be met.And then there's the fact that the new "threat-based expedited upgrade" program, which was put in place following the US failing to notice that the famed "underwear bomber" got on his plane despite being on the watchlist. So, rather than recognize that the list was broken, the administration just added a new category, allowing a single White House official the unilateral power to elevate entire "categories of people" into a special list for extra scrutiny.
One is clearly defined: The immediate family of suspected terrorists—their spouses, children, parents, or siblings—may be watchlisted without any suspicion that they themselves are engaged in terrorist activity. But another loophole is quite broad—”associates” who have a defined relationship with a suspected terrorist, but whose involvement in terrorist activity is not known. A third loophole is broader still—individuals with “a possible nexus” to terrorism, but for whom there is not enough “derogatory information” to meet the reasonable suspicion standard.
This extraordinary power for “categorical watchlisting”—otherwise known as profiling—is vested in the assistant to the president for homeland security and counterterrorism, a position formerly held by CIA Director John Brennan that does not require Senate confirmation.Basically, as most people suspected, it appears the government has broad and, until now, secret powers to effectively ruin someone's life by placing them on one of these watchlists... with no legitimate way to get off.
The rulebook does not indicate what “categories of people” have been subjected to threat-based upgrades. It is not clear, for example, whether a category might be as broad as military-age males from Yemen. The guidelines do make clear that American citizens and green card holders are subject to such upgrades, though government officials are required to review their status in an “expedited” procedure. 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.”