From the Washington Post:
The government’s terrorist screening database flagged Americans and foreigners as suspected terrorists almost 20,000 times last year. But only a small fraction of those questioned were arrested or denied entry into the United States, raising concerns among critics about privacy and the list’s effectiveness.
A range of state, local and federal agencies as well as U.S. embassies overseas rely on the database to pinpoint terrorism suspects, who can be identified at borders or even during routine traffic stops. The database consolidates a dozen government watch lists, as well as a growing amount of information from various sources, including airline passenger data. The government said it was planning to expand the data-sharing to private-sector groups with a “substantial bearing on homeland security,” though officials would not be more specific.
There are so many problems with the list, it’s difficult to know where to begin. First is the lack of transparency:
Few specifics are known about how the system operates, how many people are detained or turned back from borders, or the criteria used to identify suspects. The government will not discuss cases, nor will it confirm whether an individual’s name is on its list.
The second problem is that it is unclear what the purpose of the lists are. According to the Post:
The government says the database is a powerful tool for identifying and tracking suspected terrorists and for sharing intelligence, and that its purpose is not necessarily to make arrests. But the new details about the numbers, disclosed in an FBI budget document and in interviews, raise questions about the database’s effectiveness and its impact on privacy, critics said. They argued that the number of hits relative to arrests was alarmingly high and indicated that the threshold for including someone on a watch list was too low, potentially violating thousands of Americans’ civil liberties when they are stopped.
If the purpose isn’t to identify terrorists to arrest them, then what’s the point? The Post quotes an FBI official as saying:
“A lot of times it’s not to our advantage to make an arrest,” FBI spokesman Paul Bresson said. “We don’t want the subject to know what we know. It doesn’t mean we’re not paying attention. On the contrary, it shows that we’re being very proactive in trying to identify threats.”
So the point is to make some kind of a statement to the suspect, as in something like: “We think you’re up to no good, so let’s detain you a little bit each time you fly or cross the border. We won’t tell you precisely what we know, but we know you’re up to no good. So there!”
The article tells the story about a man who is continually detained:
Abe Dabdoub, 39, and his wife, both U.S. citizens, live in a Cleveland suburb. He said he has been detained 21 times at Michigan’s border with Canada since last August. Dabdoub, who works for an electronics manufacturing company, said he has even begun to keep a spreadsheet. The first four times, he said, he was handcuffed. Once, his wife had to plead with the agents not to handcuff him in front of their 5- and 7-year-old boys, he said. The agents know him so well by now that they call him by his first name. Every time he asks them why he is being stopped, Customs officers tell him, “We can’t tell you, for national security reasons,” he said.
What’s the point of continually detaining this man? To humiliate him? If after further inquiry, the agents learn that he’s not a danger, then why isn’t he off the list? If he is a danger, why isn’t he arrested? What’s the point of continually detaining him?
The databases are shared with state and local police as well. At the end of the article, a police chief says that one of the 9/11 hijackers would probably have been on the list:
Jim McMahon, chief of staff for the International Association of Chiefs of Police, which represents 18,000 state and local police agencies across the country, said the database helps police officers “make a better judgment” about whether to detain a person. One of the 9/11 hijackers, Ziad Samir Jarrah, was ticketed for going 95 miles per hour on Interstate 95 in Maryland two days before the attacks, he said. “Today, chances are he would have been on the list,” he said.
Of course some of the hijackers would have been on the list. With as many as 20,000 on the list, it’s hard not to hit a few terrorists. But the irony here is that the hijacker would probably have been detained and then released, as this seems to be the primary practice of the list — just to briefly detain folks to show that the government is being “proactive.” So being on the list doesn’t seem to mean that dangerous people are taken off the streets. Instead, it just means a brief detention, the purpose of which remains obscure. The detention doesn’t seem to be to obtain more information about a person. It is just to send a message of some sort.
The article describes a person who successfully challenged being detained:
Francisco “Kiko” Martinez, a Colorado lawyer and civil-rights activist, said he was detained twice in recent years by police officers who pulled him over on traffic stops and held him in one case more than three hours, and in another, in handcuffs. Through legal proceedings, Martinez obtained police reports that revealed his watch-list status.
“A driver’s license check revealed [Martinez] as a possible individual having ties with terrorism,” a state trooper wrote after a 2004 stop near Chicago, according to one report.
Last year, Martinez sued the federal government, claiming that he was unlawfully detained and that he was included on a watch list as a result of his political activities.
Last month, he won a $106,500 settlement from federal, state and tribal authorities. Though the settlement did not address any of the underlying constitutional claims, Martinez asserted that it “shows that I shouldn’t have been on this terrorism watch list in the first place” and that “the government is misusing this so-called war against terrorism to target its domestic political opponents.”
Hopefully, more people will challenge watch-list detentions. Unfortunately, the courts are likely to be so deferential that the Fourth Amendment will provide little protection. But perhaps with enough challenges, more transparency and fairness will be imposed into the watch list process. It is a faint hope, but a hope nonetheless.
Originally Posted at Concurring Opinions
* * * *
This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.