A judge last week ruled the federal government’s Terrorist Screening Database (TSDB), which secretly categorized more than 1 million people as “known or suspected terrorists,” is unconstitutional.
Like a number of “War on Terror” reforms instituted in the Bush years, the TSDB’s unconstitutionality was obvious from its inception. Indeed, the very idea that we needed to “take the gloves off” in our post-9/11 “State of Exception” was an original selling point of some of these programs.
The TSDB is cousin to the No-Fly List (a different and more restrictive list ruled unconstitutional in 2014), the Distribution Matrix (the drone assassination program also known as the “Kill List”), the STELLAR WIND warrantless surveillance program, multiple expansions of the Foreign Intelligence Surveillance Act, the broadened use of National Security Letters to obtain private data without warrant, the “Enhanced Interrogation” program the rest of the world calls torture, and countless other War on Terror initiatives that were and are clear violations of the spirit of the constitution.
Many of these programs were sold to the public as temporary measures — Diane Feinstein way back in 2001 said five-year sunset provisions would be a “valuable check” on potential abuse of the Patriot Act — but turned out to be essentially permanent features of the state.
The TSDB is produced by the Terrorism Screening Center, a “multi-agency center” administered by the FBI. The Department of Homeland Security, the National Counterterrorism Center, the Transportation Security Administration, and the United States Customs and Border Protection also contribute. Even the FBI proudly uses the program’s creepy sobriquet, “the watchlist.”
The recent lawsuit (Anas Elhady et al v. Charles Kable, Director of the Terrorist Screening Center) was brought by 23 Muslim-Americans who complained of a “range of adverse consequences.” Plaintiffs complained of being repeatedly handcuffed at the border, searched, denied access to flights, and other issues.
The ugliest detail in the lawsuit involves the sheer reach of the list. From Judge Anthony Trenga’s memorandum:
The FBI… shares TSDB information with more than 18,000 state, local, county, city, university and college, tribal, and federal law enforcement agencies and approximately 533 private entities through its National Crime Information Center (NCIC) program, which these law enforcement agencies and private entities then use to screen individuals they encounter in traffic stops, field interviews, house visits, and municipal permit processes.
After the towers fell, Americans wanted to feel safe from terror attacks, by any means necessary. The notion that some kind of profiling had to go on in order to tighten up security procedures was fairly uncontroversial eighteen years ago.
As a result, few cared about the long-term implications of giving the state power to informally tab people terrorists, before blasting out to 18,000 different entities, including schools, embassies, and potential employers.
There was no real brake on the listmaking process, which allowed “the watchlist” to balloon. The list expanded from 680,000 people in 2013 to 1.2 million in 2017. Some 4,600 of the people on the list are said to be Americans.
Inclusion on the TSDB happens according to a space-age, Homeland version of the infamous stop-and-frisk policing technique, another program that became an end run around probable cause. In the mid-2000s, hundreds of thousands of people in cities like New York, mostly young black and Hispanic males, were stopped every year based upon the “reasonable” or “articulable” suspicion that a person has committed, is committing, or is about to commit a crime.
Similarly, a person could land on the TSDB based upon the “articulable intelligence” that a person “is engaged, has been engaged, or intends to engage” in terrorist activities.
There was no requirement that a person commit a crime before being placed on the list, and being acquitted of a terrorism-related offense didn’t prevent one from being placed on this informal dishonor roll.
The mere fact of the list gave federal authorities enormous power. One whiff of a person’s name near the “known or suspected” terror roster would be enough to end applications for FAA or transportation licenses, hazmat permits, access to military bases, and a variety of government or private sector jobs or education opportunities.
This is probably a highlight of the program for some – it’s difficult to question the wisdom of keeping a suspected terrorist away from hazardous materials – but the huge problem was that people had no real recourse for contesting their inclusion on the list.
The official complaint method for travelers who experienced difficulties was the Department of Homeland Security’s Travel Redress Inquiry Program (TRIP). However, as Trenga noted:
The submission triggers a review… which, in 98% of cases, results in a determination that the claimed travel difficulties had no connection to an individuals inclusion on the TSDB.
When the complainant is a match to someone on the watchlist, the complaint goes to the “TSC Redress Office,” which would then conduct an internal review and send the complainant a determination letter that, no matter what, would not inform the person if they were or were not on the list.
In a lot of War on Terror programs, the fact that no one can be sure if they’re even on a list becomes a major defense against challenges to the system. As an American Bar Association editorial noted back in 2011,
A second doctrinal problem arises from the deeply problematic intersection between secrecy and the doctrine of standing…
For years, the government has advocated… a restrictive theory of standing… requiring would-be challengers of government surveillance programs to demonstrate that the government has actually intercepted their communications.
It’s a Catch-22. You need standing to challenge an abuse of authority, but that very abuse of authority prevents you from gaining information to secure standing.
Want to claim the government is violating disclosure rules under the FOIA law? You might have a problem if you can’t prove what’s being rebuffed in a FOIA request. Want to contest your inclusion on the No-Fly List, or the TSDB? It’s a problem if you don’t even know for sure you’re on it.
I watched this process play out in court last year. When an American citizen named Bilal Abdul-Kareem, who claimed to have survived multiple drone attacks overseas, sued to get himself removed from the “Distribution Matrix,” he faced a serious hurdle because he could not prove he was on the list.
The government argued the suit should be thrown out because neither Kareem nor his co-plaintiff, a journalist named Ahmad Zaidan, could “plausibly” make a case they were on a list.
“The much more plausible explanation,” the government lawyer argued in a DC court last spring, “is that plaintiff Kareem experienced explosions in Syria because he was covering the Syrian civil war as a journalist.”
The Kill List, the TSDB, and all the secret surveillance programs pose the same problem: they exist more or less completely apart from meaningful public oversight. They’re bureaucratic states within states.
For instance, part of the PATRIOT Act governing the issue of National Security Letters (NSLs) – by which the FBI can demand that private companies turn over subscriber information, billing records, and other private data – allows the government to place gag orders on recipients of such letters.
Because of this, we only have a faint idea of what NSLs look like. In one rare case, a man named Nicholas Merrill balked and sued when his company was issued a National Security Letter. In that case, the government argued that even releasing the existence of the letter would compromise national security.
This is frightening given that a) no courts need to approve the issuance of such letters, and b) the quantity of such demands is massive. Over a ten-year period, the government reportedly issued over 300,000 NSLs, at one point reaching a pace of 60,000 issued per year. The Merrill case in 2015 represented the first time a gag order was lifted on one of these operations.
The recent watchlist lawsuit should remind us we’re assassinating, torturing, snooping on, and blacklisting people all over the world, by means of a continually expanding federal bureaucracy that exists outside of any specific mission, and refuses to recognize the oversight authority of courts or congress.
One of the reasons these secret bureaucracies keep expanding is that there is no powerful lobby, no civil liberties version of PhRMA or the National Rifle Association, to oppose them. The people affected by these programs aren’t drug companies or gun manufacturers, just everyone, and everyone doesn’t have much juice in Washington.