First launched on December 1, 2003, the Terrorist Screening Dataset—now more commonly referred to as the Terrorist Watchlist—was designed to prevent acts of terrorism in the United States.
Federal law enforcement and intelligence communities quickly learned that three of the 9/11 hijackers—Mohammed Atta, Ziad Jarrah, and Hani Hanjour—had been stopped by state or local law enforcement officials for routine traffic violations leading up to the three September 11, 2001 terror attacks in New York, Pennsylvania and Washington, D.C. It was believed by anti-terrorism government agencies that a watchlist would provide law enforcement with opportunities to prevent planned terror attacks, such as 9/11 before they occurred.
The Terrorist Watchlist, during its more than two-decade existence, has not prevented any significant acts of terrorism. What it has accomplished is the placement of nearly 2 million people on the list—thousands of whom should not be on any government law enforcement, much less terrorist, watchlist, according to a December 2023 CBS News investigation report.
That’s because the FBI and other federal government agencies that “nominate” individuals for placement on the list need only have “reasonable suspicion” that an individual is a “suspected terrorist” or someone affiliated, regardless of how remote or innocent, with terrorism. Millions of innocent individuals have been placed on the watchlist but didn’t even know it until they were stopped at an airport or at a border crossing.
“Reasonable suspicion” lies in the unchartered legal terrain between mere speculation and probable cause. The only guidance courts offer for traversing this terrain is that the suspicion must be based on specific, unbiased, and fair circumstances from which a reasonable inference may be drawn.
Put simply; reasonable suspicion allows a law enforcement official to act on a subjective hunch that wrongdoing is amiss, which can later be supported with whatever facts the officer may offer to justify their action.
That’s all it really takes for someone to be placed on a terrorist watchlist, and there are several such lists. The problem is that the FBI or any other agency that triggers a watchlist placement does not have to disclose the basis for the “reasonable suspicion” and, in fact, will neither confirm nor deny that a terrorist watchlist placement has been made.
Government spokesman Monte Hawkins, who has served on the National Security Council since 9/11 and who currently oversees the terrorist watchlists for the Biden administration, told CBS News that “Those 2 million people who are on the list are on there for a reason.” In a sophomoric attempt at justification, he added that most of the placements are not U.S. citizens or legal residents in this country.
Hawkins’ casual dismissal of constitutional concerns about abuses of the watchlists flies in the face of admissions, as conveyed to CBS by other national security officials, that “a lot of” people should have their names removed from the watchlist, but the government does not have either the personnel or resources to audit the watchlist to determine who should be removed.”
What are the individual consequences of being placed on a terrorist watchlist?
There are plenty.
For example, in 2006 alone, some 30,000 airline passengers had their names mistaken for names on the watchlist. This is a minor consequence compared to some of the other difficulties described in the CBS report:
“Being on a watchlist can have significant consequences on people’s lives. In countless civil lawsuits over the past 20 years, people have described how they believe the watchlist caused them to be stopped from flying home after a vacation, to fail a background check to get jobs, or to have their phones and computers searched. Others said it triggered law enforcement to handcuff them at gunpoint or that they were detained and interrogated by foreign intelligence services.
“Over the years, tens of thousands of innocent people have complained to the government about being incorrectly treated like terrorist suspects. According to the Department of Homeland Security, 98% of those who’ve reported complaints were ‘false positive,’ meaning they were flagged because their names were familiar to others in the database.”
Less than a week after the CBS report, NBC News carried a report about a recently released report from the Senate Homeland Security and Governmental Affairs Committee. The report found that the placement criteria for various government watchlists for identifying and tracking people with possible connections to terrorists were so broad that they could lead to “unwarranted screenings” and stretch terrorism prevention resources too thin.
The Senate report found that travelers entering and leaving the U.S. faced 22 reasons for possible screening and, more significantly, that some of these reasons could violate civil liberties. The Senate report put it this way:
“While protecting Americans from the threat of terrorist attacks is paramount, potential abuse and/or lack of meaningful redress for wrongful screenings by our government risks eroding Americans’ civil rights and civil liberties.”
A 2007 audit of the government terrorist watchlists found that 40 percent of the placements on the list contained factual errors or inconsistencies, and 20% of the placements should be removed altogether.
The tragedy about terrorist watchlists is that individuals wrongfully placed on the list have no redress. They can file a complaint with the Department of Homeland Security about unfortunate “travel experiences” they may have encountered because of the wrongful placement. Still, that kind of complaint will not remove their name from the list.
The American Civil Liberties Union describes the broken terrorist watchlist system this way:
“A bloated, opaque watchlisting system is neither fair nor effective. A system in which innocent people languish on blacklists indefinitely, with their rights curtailed and their names sullied, is at odds with our Constitution and values.”
We agree.