“Watchlisting is not an exact science,” says a document produced by the government intelligence agencies responsible for placing individuals on no-fly and terrorism watch lists. But it is something that can be written down, and on Wednesday The Intercept published, in full, the government’s secret document detailing how and why it flags suspected and known terrorists.
The National Counterterrorism Center issued the “March 2013 Watchlisting Guidance” last year, and although the document is technically declassified, the Obama administration refused to share it. Attorney General Eric Holder stated in an affidavit last May that “the Watchlisting Guidance, although unclassified, contains national security information that, if disclosed…could cause significant harm to national security.” The 166-page document, co-written by government intelligence, law enforcement and military representatives, is the most comprehensive document to date about government labeling of terrorism.
The document is clotted with convoluted terminology and vague loopholes, such as the ones requiring “irrefutable evidence” or “concrete facts” to label an American citizen or foreigner a terrorist. A loosely defined “reasonable suspicion” is all it takes to put someone on the government’s watch list, according to the document.
What’s more, the language describing the “reasonable suspicion” criteria in the “Minimum Substantive Derogatory Criteria” chapter is almost indecipherable because of all the jargon:
“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.”
What constitutes “terrorist” activity can range from damaging government property to dismantling computers owned by financial institutions. The report makes little distinction between “known” and “suspected” terrorists, but grants government officials the authority to “nominate” individuals to the watch list, based solely on “fragmentary information.” Ryan Devereaux, co-writer of The Intercept’s report, told Newsweek that the nominating agency has a wide-ranging group of intelligence agents and members of the military, but the information itself is disclosed with local law enforcement.
The immediate family of suspected terrorists—children, spouses, siblings and parents—can be placed on a watch list without any evidence suggesting they are engaging in terrorist activity. “Associates”—meaning someone who has any kind of defined relationship with a suspected terrorist—can be placed on a watch list as well. Anyone the government deems as having “a possible nexus” to terrorism but lacking “derogatory information” can meet the reasonable suspicion standard. What a “possible nexus” might be is unspecified.
Foreigners and Americans alike can be nominated for a spot on a government watch list if they are associated in any capacity with a terrorist group. The U.S. government revealed that in 2013 it received about 468,749 nominations, but only 4,915 of those were rejected. That’s about 1 percent. Once labeled as a terrorist—“known” or “suspected”—a person faces a lifetime of difficulty. The government shares watch list data with foreign governments, local law enforcement and “private entities,” making it difficult for these individuals to get a steady job or travel.
Being on the government’s no-fly list, which has tens of thousands of names on it, can result in heightened screenings at border crossings and airports. But The Intercept reports that on 9/11 the no-fly list had just 16 names on it. In 2010, President Barack Obama gave heightened power to the nominating agency putting people on the no-fly list and pressured it to add more names to the list after the Detroit “underwear bomber” incident in 2009.
In addition, White House officials now have the authority to raise “entire categories of people” to the no-fly list from selectee lists. This practice—“categorical watchlisting”—is essentially profiling.
“The [categorical watchlisting] exception is perhaps the most expansive and certainly one of the most troubling,” American Civil Liberties Union attorney Hina Shamsi told The Intercept. In an interview with Newsweek, Jeremy Scahill, co-writer of The Intercept report, described it as “a global stop-and-frisk program.”
Not even death can get someone off the list. The rulebook stipulates that deceased individuals may stay on the list if their identity might be used by a suspected terrorist, in a “demonstrated terrorist tactic.” A deceased spouse of a suspected terrorist may also be placed on the list.
An individual can file a complaint through the Department of Homeland Security’s Traveler Redress Inquiry Program, and the individual will then be subject to an internal review. An adjustment of watchlist status or removal from the list might happen, but the person will not be told if he or she has been taken off or downgraded. All agencies that have contributed information on a targeted person must agree on removing the individual from the list.
“Our hope in publishing will result in a much-needed debate about the relationship between secrecy, safety and civil liberties,” said Scahill. “It defies not only basic logic but defies the spirit of our Constitution.”
According to the document, “uncorroborated” social media posts can be grounds for placing someone on a government watch list. So maybe there’s never been a better time to go AWOL from Facebook.