US Terror Watchlists: Inaccurate and Ineffective
The problem:
Federal government’s main terrorist watch list has grown exponentially over the last decade. The U.S. government today maintains a massive watchlisting system that risks stigmatizing hundreds of thousands of people, including American citizens, as “known or suspected terrorists” based on secret standards and secret evidence, without a meaningful process to challenge error and clear their names. The watchlists in this system are shared widely within the federal government, with state and local law enforcement agencies, and even with foreign governments, heightening the negative consequences for listed individuals. (ACLU)
This can have significant impact on real people. For example, often, members of the Arab and Muslim community, including U.S. citizens, attempting to re-enter the U.S. at the Canadian land border are handcuffed, separated from their families, detained for hours and subjected to invasive questioning after their passport is swiped. People have reported being asked by Customs and Border Patrol about their religious beliefs and attendance of mosques, specific details of their international travel including all people visited and places stayed, and their political views. Furthermore, all electronic equipment, including laptops and cell phones, are subjected to searches and can be retained for an undefined “reasonable amount of time”.
Often times, it is the same people stopped over and over again, whenever they attempt to reenter the country at the northern border. They are let go after a few hours, often without explanation. Sometimes, they are told their name is similar to someone’s on the watchlist, but are provided no mechanism for redress, other than reporting to DHS Trip (which we find to be ineffective). Overbroad and intrusive questioning of ordinary Americans at the border doesn’t just violate their constitutionally protected rights, it instills fear, anxiety, and insecurity in targeted communities.
While Arab and/or Muslim Americans are largely impacted, many others have been caught up in this endless deep hole.
Case Studies (actual stories):
Zakariya* was stopped over a dozen times by border patrol when coming back from visiting family in Canada. Zakariya is a firefighter and veteran, who also happened to convert to Islam. Since then, whenever we is at the border, he is detained for hours for questioning, separated from his family, and asked intrusive questions, such as what mosque does he attend. He now fears visiting his family.
Abraham* has been stopped by CBP over 40 times coming back from Canada at the northern border. He, too, has family there and also travelled for business. This has greatly affected his job, as he no longer feels comfortable going to Canada. The border patrol agents knew him and his family after awhile, yet still were forced to detain him for hours before they could clear him to reenter-yet he was always cleared.
*Only first names have been used to protect identity of clients
Recommendations:
- Congress should enact the Travelers’ Privacy Protection Act to establish standards for border searches of electronic devices, including the requirement of reasonable suspicion for such searches.
- Congress should enact the End Racial Profiling Act to prohibit law enforcement agencies from relying on race, ethnicity, national origin, or religion in border inspections.
- The Government Accountability Office and the Privacy and Civil Liberties Oversight Board should investigate the civil rights, civil liberties, and privacy concerns presented by Custom and Border Patrol inspections.
- The Department of Homeland Security (DHS) should record and publish information on the gender, race, ethnicity, religion, national origin, and nationality (as known or perceived) of travelers subjected to special security measures.
- DHS should establish stricter standards for incorporating government terrorist watchlist records into Custom and Border Patrol’s screening database.
- The Terrorist Screening Center should conduct a comprehensive review and cleansing of the records in the government’s consolidated terrorist watchlist.
- DHS should enact a new, effective, and secure redress program. The current program, DHS TRIP, is the only form of redress and has been proven to be ineffective. Only a small percentage have been able to successfully remove their names. Furthermore, the TRIP Web site, which collects personal information, was not secure and exposed applicants to identity theft. An investigation by the House Committee on Oversight and Government Reform found that DHS awarded the TRIP Web site contract without competition.
- Congress should enact measures to stop, monitor and prevent potential future profiling according to race, religion, ethnicity or national origin, such as demographic data, reporting requirements, a mandated audit and public report, and a private right of action based on a disparate impact standard.
Helpful Resources:
NY Times OpEd: “The Black Hole of Terrorism Watch Lists”
http://www.nytimes.com/2013/12/16/opinion/the-black-hole-of-terrorism-watch-lists.html
NY Times “Who is Watching the Watch Lists?”
http://www.nytimes.com/2013/12/01/sunday-review/who-is-watching-the-watch-lists.html?_r=0
Report: Returning Home: How U.S. Government Practices Undermine Civil Rights At Our Nation’s Doorstep
Report: Unreasonable Intrusions: Investigating the faith, politics and finances of those returning home
http://www.defendingdissent.org/pdf/Unreasoneable_Intrusions_2009.pdf
U.S Government Watchlisting: Unfair Process and Devastating Consequences
https://www.aclu.org/national-security/us-government-watchlisting-unfair-process-and-devastating-consequences