Tuesday, September 20, 2016

America's Terrorist Watchlist

Updated April 2017

In light of the ongoing "terrorist" attacks on U.S. soil, I wondered exactly what it took to actually get oneself on the United States terrorist watchlist and how an individual ends up getting blacklisted.  Fortunately,  the fine folks at Intercept published a copy of the federal government's "Watchlisting Guidance" publication that you can find by clicking on this link.  The unclassified but for "official use only/sensitive security information" 79 page (plus appendices) book was assembled by a who's who of the United States security apparatus you can see from this screen of the cover of the 2013 version:

The original 2003 signatories included Colin Powell, John Ashcroft, Tom Ridge and George Tenet.  The government departments involved included the Departments of State, Defense, Treasury, Homeland Security, the Central Intelligence Agency, the Attorney General   All of these departments had a memorandum of understanding which allowed them to share information wit each other.  Here is an interesting letter from George Tenet as Director of the CIA showing the Homeland Security Information Sharing Memorandum of Understanding between the CIA, the Attorney General and the Secretary of Homeland Security:

Information among the signatories was to be shared through the Terrorist Threat Integration Center (TTIC) once it was operational.  It is interesting to note that the Department of Homeland Security Legislation mandated that DHS was to be provided, without request, all information concerning the vulnerability of the infrastructure of the United States, significant and credible threats of terrorism against the United States, any other information relating to threats against the United States even though the information had not been fully evaluated or analyzed.

In October 2005, Executive Order 13388 (see appendix 6) established the Information Sharing Council which functioned to expedite and strengthen the sharing of terrorist information:

1.) among federal agencies

2.) between federal agencies and State, local and tribal governments

3.) the private sector

The Information Sharing Council was composed of the Secretaries of State, Treasury, Defence, Commerce, Energy and Homeland Security, the Attorney General, the Director of the Office of Management and Budget, the Director of National Intelligence, the Director of the CIA, the Director of the FBI, the Director of the National Counterterrorism Center and other agencies as designated by the Director of National Intelligence.  In typical federal government fashion, it's interesting to see how expanded the anti-terrorism network had become by 2005.

Now that we have that background, let's look at how this massive government operation defined suspected terrorists.  Here's their definition:

"A suspected terrorist is an individual who is reasonably suspected to be, or has been, engaged in conduct constituting, in preparation for, in aid of, or related to terrorism and/or terrorist activities based on an articulable and reasonable suspicion. "(my bold)

Here are the pages in the Watchlisting Guidance document which outline the types of terrorists:

You'll note that these guidelines which were formerly secret, frequently use the words "reasonable suspicion".  This allows individuals to be designated as representatives of terrorist organizations without any actual evidence that they are connected to such organizations.

For your information, here is the non-terrorism-related definition of reasonable suspicion:

"Reasonable suspicion is a standard used in criminal procedure.  It is looser than probable cause.  Reasonable suspicion is sufficient to justify brief stops and detentions, but not enough to justify a full search.  When determining reasonable suspicion, courts consider the events leading up to the brief stop and a decide whether these facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion."

Basically, the U.S. government has set up the rules so that merely being suspected of being a suspected terrorist is sufficient to land yourself on the wrong side of the ledger.  Potential behaviours that could result in "reasonable suspicion" include:

1.) Attendance at training camps known to facilitate terrorist activities

2.) Attendance at schools/institutions identifying as teaching an ideology that includes the justification of the unlawful use of violence or violent extremism

3.) Repeated contact with individuals identified as teaching or espousing an ideology that includes the justification of the unlawful use of violence or violent extremism

4.) Travel for no known lawful or legitimate purpose to a locus of terrorist activity.

To ensure whether or not reasonable suspicion exists, a nominator (the person who determines one's eligibility to find themselves on the watchlist) is subject to the following:

1.) due weight should be given to the 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.  That said, "irrefutable evidence or concrete facts are not necessary".

2.) individuals shall not be nominated based on sources that are known to be unreliable or not credible.  Once again, that said, single source information should not be automatically discounted, particularly information that appears as postings on social media sites.  Once again, the reasonable suspicion factor comes into play.

3.) nominators should consider behavioural indicators that are known to be associated with known or suspected terrorists.  Some of the activities could also have activities that have innocent explanations that are not related to terrorism and other activities conducted within the United States may be an exercise of rights guaranteed under the Constitution.  Watchlisting individuals for engaging solely in constitutionally protected activities is prohibited. 

With all of this in mind, here is the standard adopted for placing an individual on the terrorist watchlist:

"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.

“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.”

Lastly, here is a list of the minimum identifiers that the federal government and its agencies can use to actually determine the identity of possible terrorists who are added to the watchlist:

1.) First and last name

2.) One of the following: full date of birth, passport number with or without country of issue, unique identifying numbers like social security numbers, alien registration numbers, visa numbers etcetera, telephone numbers, email addresses, licence plate numbers

or 3) Any two of the following; country of citizenship if different from place of birth, place of birth if different from country of citizenship, partial date of birth including a range of years, full name of an immediate family member, occupation or current employer, specific degrees received, schools attended, physical identifiers including height, weight and race, unique physical identifiers such as scars, marks or tattoos, street addresses or other sufficiently specific location information.

Perhaps this explains why there are so many erroneously identified "terrorists" among the myriad of Americans who appear on a government list somewhere in the anti-terrorism system given that some of the allowable identifiers are hardly what one would term as "unique".

Quite frankly, given that some of the same players who provided the faulty information that led to the never-ending conflict in Iraq are still responsible for providing America's security apparatus with a terrorist watchlist is hardly reassuring.  Given that the information gleaned through this watchlisting process is shared with law enforcement throughout the land and the fact that concrete facts are not really necessary to get one's name on the list, anyone could be in for a significant and unexpected surprise the next time that they are pulled over by a member of their local police force for a minor traffic infraction or try to board an aircraft.

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