The trouble with US watchlists

That’s a trend almost certain to continue as the database grows relentlessly, resulting in a huge haystack of suspects in which to find the terrorist needle. There are no up-to-date figures on the size of that haystack but according to a report a year ago by the Justice Department’s inspector general, the “consolidated watch list” contained more than 1.1 million “known or suspected terrorist identities” by the end of 2008.

That corresponded to around 400,000 people, plus various aliases and ways of spelling names. If the growth rate of previous years is anything to go by, the database may well reach two million entries sometime before the end of this year. The government’s approach to the watch lists has fluctuated from rapidly expanding it after September 11 2001, to trying to trim it, as happened in the final year of the Bush administration.

The course changed after the abortive Christmas Day plot to blow up a Detroit-bound airliner by a Nigerian student, Umar Farouk Abdulmutallab, who was on a catch-all list called the Terrorist Identities Datamart Environment (TIDE) but not on the smaller “no fly” list. President Barack Obama called for a thorough review of the watch list system.

At a congressional hearing in January, the director of national intelligence, Dennis Blair, said the Bush policy change had responded to complaints about bloated lists and extra scrutiny of innocent travelers. An oft-heard question, Blair said, was “Why are you searching grandmothers? … I should not have given in to that pressure, but it was a factor.”

That, for the time being, was the end of tighter regulations on putting suspects on watch lists. But it was not the end to lapses in security procedures -  Faisal Shahzad, the Pakistani-American charged with trying to explode a car bomb in New York’s Times Square, was allowed to board a Dubai-bound airliner despite having been placed on the no-fly list the day of his flight.

An alert Border Protection officer spotted his name on the list as the aircraft was taxiing out. It was ordered to stop and Shahzad was taken off.

“One really has to wonder where was the failing here,” Republican Senator Lisa Murkowski said in a congressional hearing. “What happened with this watch list. It makes you wonder whether there was a lapse in communication … between law enforcement agencies working at the airport.”

Watch lists to grow
What will be happening with the watch lists seems clear: they will grow because of the nature of Washington bureaucracies whose mode of operation include the principle of CYA (Cover Your Ass). In other words, there is little downside for officials who err on the side of adding too many names but there is a lot for letting an Abdulmutallab slip through.

Who is being placed on the list under current regulations? “In general, individuals who are ‘reasonably suspected’ of having possible links to terrorism – in addition to individuals with known links – are to be nominated for inclusion in the consolidated watch list by the FBI and other members of the intelligence community,” according to the Government Accountability Office, or GAO.

“Reasonable suspicion” is a flexible term and a red flag for civil liberties advocates. An Arizona state law that requires police officers to question a person’s immigration status if there is “reasonable suspicion” that he or she is in the country illegally prompted a chorus of condemnation.

In an odd twist in American politics, “reasonable suspicion” is also raising the hackles of the powerful National Rifle Association (NRA), a group enraged by pending legislation that would give the US Department of Justice authority to block the sale of firearms to people on the terrorist watch list. The issue came up in a congressional hearing just two days after the abortive Times Square bomb attack.

Police found a rifle in the car Shahzad left behind at the airport. He had bought it three months earlier, when he was beginning to assemble material for his abortive bomb plot.

Shahzad was not on a terrorist watch list at the time but if he had been, he still could have bought the gun. Why?

“Membership in a terrorist organisation does not prohibit a person from possessing firearms or explosives under current federal law,” says the GAO, the research arm of Congress. Neither does inclusion in a terrorist watch list. Over the past six years, according to a GAO report read at the hearing, sales of guns and explosives to people on terrorist watch lists totaled 1,119. These included several on the “no fly” list “because the background checks revealed no prohibiting information under current law.”

Under current law, the background checks licensed gun dealers must perform are designed to stop sales to nine categories of people, including “felons, fugitives, unlawful drug users and aliens illegally in the United States.”

The categories do not include “suspicion” and the NRA argues that suspicion is not enough for Congress to curb or take away the constitutional right, enshrined in the second amendment, to own and bear arms. Given the lobby’s enormous influence on Congress, the argument is probably strong enough to block, or at least delay, legislation that would close what is known as the “terror gap.”