Watch Lists: The Terrorist Screening Database; No Fly, No Buy; and the Possibility of a Muslim Registry
“[The Watch list] has been faulted for producing a high error rate in the past. I cannot support a standard that is so inherently subjective, especially when it is used to deny a constitutional right. -Rep. John Carter (R-Texas), June 2016
A preschooler known only as “Baby Doe” was the lead plaintiff on a 2016 lawsuit challenging the error-prone federal watch list. The child was seven months old when the letters “SSSS,” short for Secondary Security Screening Selection, first appeared on his airplane boarding pass.
For those letters to appear, someone with access to the FBI’s Terrorist Screening Center (TSC) would have had to determine that the toddler was a threat to U.S. national security. This determination is made through a secret process that requires neither “concrete facts” nor “irrefutable evidence.”
The watch list has a well-earned reputation for being error-prone, disproportionately targeting Muslims, and offering little remedy to appeal incorrect designations as required by the U.S. Constitution.
Reports of suspicious children, such as Baby Doe and third-grader James Robinson, being placed on the watch listed are numerous. Additionally, a host of other oddities have added to the list’s poor reputation over the years, such as Nobel Prize winner and anti-Apartheid leader Nelson Mandela being placed on the list until 2008. Additionally, CNN reporter Drew Griffin found himself listed after he produced a series of stories critical of the Transportation Security Administration, and a former Air National Guard Brigadier General who worked as an airline pilot, while licensed by the TSA to carry a gun into the cockpit of his aircraft, was also treated as a terror threat every time he went to work.
Because publicly disclosing and challenging a wrongful watch list designation can stigmatize a person in their community and threaten their employment, there are undoubtedly numerous individuals who have kept their placement on the watch list a secret.
No Fly, No Buy Legislation
Following the horrifying massacre of 49 LGBTQ club goers in Orlando, Fla. in June, bills were introduced into both the U.S. House and Senate aimed at banning gun sales to people on the watch list. In the House, Democrats waged a 24-hour sit-in to force consideration of Rep. Peter King’s (R-N.Y.) “Denying Firearms and Explosives to Dangerous Terrorists Act” (H.R. 1076). Rep. King is best known for a series of Islamophobic hearings he chaired in 2011. In the Senate, a bipartisan coalition introduced the “Terrorist Firearms Prevention Act of 2016,” which also relied on federal watch lists to ban firearms purchases.
Neither bill would have prevented the Orlando shooter from being able to purchase a firearm because he was on neither the No Fly List nor the Selectee List.
No Fly, No Buy gained attention on the Presidential campaign trail as well. During the first presidential debate, Democratic candidate Hillary Clinton said, “We finally need to pass a prohibition on anyone who is on the terrorist watch list from being able to buy a gun in our country. If you are too dangerous to fly, you are too dangerous to buy a gun.” Former New York City Mayor Rudy Giuliani, who advised Republican candidate Donald Trump’s campaign on terrorism and national security issues, was reported to favor “forcing Muslims on the federal government’s terrorism watch list to wear electronic monitoring tags or bracelets for authorities to track their whereabouts.”
Republican legislators backed by groups like CAIR, the American Civil Liberties Union, and the National Rifle Association, ultimately voted down the No Fly, No Buy legislation because it violated due process rights and because of the “high error” rates of placement on such watch lists.
A Muslim Registry?
When asked about establishing a possible database of Muslims and the idea of requiring Muslims to carry special identification cards in the United States, President-elect Trump responded, “I would certainly implement that. Absolutely.” Trump added his support for such registration being required by law, “They have to be.”
The word “inconceivable” has been applied to the notion that such a list would survive a legal challenge, and the very idea of such a registration list drew broad-based pushback. However, government entities have historically displayed remarkable creativity at circumventing Constitutional prohibitions.
The most likely 2017 scenario by which a form of such a registry could be implemented involves a Trump administration resurrecting the controversial National Security Entry-Exit Registration System (NSEERS). NSEERS, established in the wake of the 9/11 terror attacks, required nonimmigrant men and boys from predominantly Muslim countries to report to an immigration office to be photographed, fingerprinted and interviewed. Those targeted by the NSEERS program were also required to leave the United States through specified ports. Anyone who failed to comply with the program faced arrest and deportation.
NSEERS was massively ineffective, ultimately failing to capture a single terrorist and wasting millions in taxpayer dollars in the process.
Portions of the program were shelved in 2011, and in 2012 the Department of Homeland Security Office of Inspector General called for a full termination of NSEERS on the basis that the “database that supports this program is obsolete,” and it “does not provide any increase in security.” President Obama permanently dismantled the program’s regulatory framework in late 2016.
In addition to reviving NSEERS, the Trump administration may expand it to include additional countries, both genders, and no age restrictions. Immigrants and Muslim travelers to the United States may be required to answer religiously invasive “extreme vetting questions” on topics such as “jihad,” “gender equality,” the “U.S. Constitution,” and Islamic religious principles. Another possible scenario is a massive expansion of the Federal watch list. With its lax nomination standards and minimal oversight, it is ripe for abuse.
By late 2016, Facebook, Twitter, and Microsoft have all gone on the record to state that they would not help any future administration with efforts to build a Muslim registry. This is a reassuring assertion of American values. What remains to be seen is what position data brokers, corporations who collect and sell internet user’s personal information and habits, will adopt. Some data brokers have already rejected involvement in building a religious registry for the U.S. government, but others, such as Oracle, have so far remained uncommitted.
Muslim Ban 1.0
On January 28, 2017 one day after Trump signed an executive order banning all refugees and nationals of seven Muslim-majority countries from entry into the country, former New York City Mayor Rudy Giuliani admitted in an interview with Fox News that the order was originally conceived as a way to fulfill Trump’s campaign promise of a ban on Muslim entry. “Show me the right way to do it legally,” Trump said, according to Giuliani.
In a further breach of the Constitution, the day he signed the order Trump stated in an interview with the Christian Broadcasting Network that Christian refugees would be given priority in the refugee program.
Noting this, the Southern Poverty Law Center and American’s United for Separation of Church and State stated in an amicus, or friend of the court, brief filed in support of Washington state’s lawsuit against the ban that the executive order, “discriminates against Muslims and disfavors one religion as compared with others, and endorses one religion as compared with others.” The brief continued, stating that the order singled out Muslims for “harsh legal disabilities and punishments, including exclusion, detention, and expulsion.”
Amicus briefs filed by the attorneys general of 15 states – including California, New York Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, Massachusetts, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Virginia, Vermont and the District of Columbia – in support of the state of Washington lawsuit stated that the executive order “violates the Establishment Clause of the First Amendment,” because it specifically targeted people of the Islamic faith and that it “represents an act of unconstitutional discrimination.”
In the Ninth Circuit’s final, unanimous 29-page ruling on the State of Washington & State of Minnesota v. Trump against the executive order, the three judge panel wrote, “The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.” “Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all.”
American citizens who are wrongly placed on the federal terrorist watch lists must be afforded the constitutional right to due process and the ability to effectively challenge inappropriate watch list designations. Congress and the administration should reform the No-Fly list procedure so that:
Only those Americans who rightfully belong there are listed.
Those Americans who are listed are informed of it.
Placement on the watch list is temporary, pending a transparent and fair legal process by which individuals can quickly and easily challenge their placement, with a neutral judge making the ultimate determination.
If the judge upholds the placement on the list, the placement must be automatically reviewed on an annual basis by a different judge.
[Note: For references, access the full report.]