JURIST Guest Columnist Daniel Steinbock of the University of Toledo College of Law says that although watch lists may play a useful role in a broader terrorism prevention, their operation and consequences should be restricted and controlled in recognition of their limitations....
In theory, watch lists are a good idea, blocking those people who we have reason to believe will do us harm from especially vulnerable places and jobs -- or even, in the case of non-citizens, the entire country. The names of at least three of the 9/11 hijackers, for example, were known to some of the intelligence community and thus potentially could have been placed on immigration watch lists. And because watch lists embody individualized judgments, they are preferable to the ethnic or religious profiling that might otherwise be used as the basis for extra security precautions.
At best, however, watch lists will never be more than one element in a multi-layered anti-terrorist strategy. They are still in the early stages of composition and consolidation, and even their staunchest advocates would not describe them as close to complete. Many of their targets are not based within the U.S., which means the collection of accurate intelligence is not easy. The making of "terrorists" and "terrorist threats" is, in any event, a highly dynamic process, with new participants joining and old ones leaving all the time. Because intelligence gathering will only ever be partially successful and will always lag behind events, watch lists will be far from completely accurate in identifying potential terrorists. The July 2005 London bombings suggest that terrorists may consciously use (or emerge from) what the British call "cleanskins" or "lily-whites," people previously unknown to the security services. In fact, by testing the watch list system a calculating group of terrorists could determine which of their members was not on it. In short, watch lists will inevitably produce "false negatives" -- the failure to identify genuine threats.
They will also result in a large number of "false positives," labeling innocent people as real or suspected terrorists. One kind of false positive is the confusion of one person with another whose name (or a similar one) is on a watch list. This is the kind of misidentification that has drawn the most public attention and complaint, with Senator Ted Kennedy's difficulties in boarding airplanes only the most notorious. Just this week the Inspector General of the Homeland Security Department reported that border agents routinely detain innocent people for hours on the basis of a name match with a suspected terrorist, resulting in "an extremely inefficient use" of the border officer's time. Not only do these mistakes distress the affected traveler, but, as this recent report illustrates, they misdirect valuable security resources.
The more serious issue, and one that has received much less attention, is the placement on watch lists of people who in an objective sense should not be there. The "standard of proof," if one is explicitly employed in listing decisions, is apparently quite low. The Director of the Terrorist Screening Center has stated that, "to err on the side of caution, individuals with any degree of a terrorism nexus were included in the terrorist screening database." Whatever the standard of proof, it is administered by officials in a completely secret process. Bureaucratic risk avoidance undoubtedly pushes toward inclusion of questionable "candidates," for no one would want to be known as the official who kept off the watch list a person later involved in a terrorist incident.
This kind of ex parte labeling is reminiscent of the McCarthy era of the late 1940's and 1950's, when apprehension of Communist infiltration of American government and industry saw two kinds of attempts to designate the allegedly dangerous: blacklists assembled and used by private parties, and loyalty and security tests applied by government. In both cases, people believed to be Communists or "fellow travelers" were barred from jobs and even entire professions. In retrospect, few would call the use of these labeling mechanisms our country's finest hour.
Even more than the earlier blacklist and loyalty-security determinations, the watch list process combines a wide substantive reach with a bureaucratic and non-adversarial process. This mix makes a substantial number of false positives inevitable. Their costs are borne, of course, by those people who are wrongly identified as posing a threat. How, then, to reduce the number of erroneous listings, or at least ameliorate their effects?
In an article forthcoming in the Seattle University Law Review (vol. 30, issue 1), "Designating the Dangerous: From Blacklists to Watch Lists," I consider three possible ways. One would be to tighten the substantive standards for watch list placement, or to reject certain kinds of evidence. That is hard to do, however, and making the inclusion standards too stringent might undermine watch lists' usefulness as screening tools.
A second approach would be to allow some adversary process. Providing notice and a right to be heard before a person's name is initially placed on a list would be impossible, but there should be a procedure for people who discover their inclusion and want to challenge it as erroneous. This might entail an adversarial hearing, though the difficulty of conducting a fair hearing without disclosing sensitive intelligence information or sources must be acknowledged. Another response to a complaint of wrongful presence on a list might be a more thorough and demanding review of the evidence by the NCTC.
A third, and preferred, alternative, I contend, is to restrict the consequences that follow from use of the lists in other words, to put the watch back in watch lists. It is simply unfair, and probably unconstitutional, to impose serious harms on the basis of a process of ex parte labeling, especially one with a bias toward inclusion in cases of doubt. Anti-terrorist watch lists can serve to separate individuals deserving of increased investigative attention from those who are not. They should not, however, be the ground for consequences more serious than certain visa denials (for practical and historical reasons), the initiation of investigation, or minor impositions on liberty involving delay (but not denial) of access to locations or transportation. With those limitations, watch lists can be one limited but useful component of the new national security era we have been compelled to enter.
Daniel J. Steinbock is Harold A. Anderson Professor of Law and Values at the University of Toledo College of Law