Watchlists make bad policy

Politicians on both sides of the aisle have been touting the terrorist watchlist lately. In June both presidential candidates called for greater regulation of the sale of guns to persons on the watchlist.

A South Carolina representative went further, proposing to deport all immigrants who are on the watchlist. Even Rudy Giuliani got into the act. He wants Muslims on the watchlist to wear location monitoring tags. To all of these proposals, I say ugh!

I have criticized the watchlist in earlier columns and proposals to expand its use. Friends in turn have criticized me, saying I am unrealistic. If a person's name appears on the list, he must have done something bad. He deserves to have certain rights, such as the right to bear arms, curtailed. I counter that my critics do not know how flawed the government's watchlist process is. My counter usually falls on deaf ears.

Let me try again, this time drawing on the Watchlisting Guidance, a 78-page document prepared the National Counterterrorism Center in 2013. Stamped secret, it was leaked and published in 2014. It was "developed to help standardize the watchlisting community's nomination and screening process."

What is required for placement on the list? Only that one of several federal agencies has "reasonable suspicion" a person has engaged in or may engage in terrorist activity. "(C)oncrete facts are not necessary," and "due weight should be given" to "inferences" made by officials who "nominate" the person to the list. This amounts to a presumption in favor of watchlisting.

The guidance specifically states a person may be listed based on "uncorroborated" information of questionable reliability so long as the information isn't "know(n) to be unreliable." A single Facebook post, tweet or anonymous letter may be enough. The guidance is silent on how an official is to distinguish between rumor and real evidence.

The criteria for placing a noncitizen on the list are even broader. "(P)ossible nexus to terrorism" replaces reasonable suspicion. Again, the information supporting the nexus may be of "very limited or suspected reliability."

Associating with a person already on the list may be grounds for a noncitizen's placement on the list. The fact the noncitizen is not participating in the associate's suspicious activities is irrelevant.

The vague criteria have led to one million names being placed on the master watchlist as of June 2016. To the one million must be added the many false positives persons questioned because they have a similar name to the listed. False positives occur frequently in part because minimal information may describe a person on the list as little as last name, occupation, and a broad age range.

The guidance instructs officials to gather information about a person on the list during their "encounters" with the person. Information includes luggage tags, hotel receipts, membership cards, "anything with an account number," and electronic media.

The concrete consequences of being placed on the watchlist are many travel delays and bans, questionings, detentions, and denials of citizenship and permanent residence status. Then there are the subjective consequences the stigma of being placed on a government list, the loss of privacy from the government surveillance and the gathering of information, and the subtle undermining of constitutional rights.

The guidance readily admits "there are inherent limitations in any primarily name-based system." "(A)nalytic judgments may differ regarding whether subjective criteria have been met."

The details of the guidance and the last admission should give our policymakers pause before they propose using a flawed process for purposes for which it was not intended.


Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at 585-262-3400 or

Published: Fri, Aug 26, 2016