The United States has used terrorist watchlists for over 30 years to identify, track, and screen terrorists. At first, these watchlists evolved to meet the specific requirements of individual agencies’ missions. Subsequent investigations into the failure to detect, deter, and defeat the 9/11 terror attacks revealed weaknesses in the design of the watchlists. As a result, the government developed new tools that linked various information systems used by law enforcement, intelligence, and homeland security organizations to a common, unclassified terror watchlist known as the Terrorist Screening Database (TSDB). This database of terrorist identities is overseen by a new bureaucratic enterprise known as the Terrorist Screening Center. Reforms of the watchlist enterprise have led to a dramatic expansion of the TSDB that now includes over one million separate identities.
The consequences of the rapidly expanding TSDB are fourfold. The guidelines and procedures governing the watchlist place too great an emphasis on the judgement of individual agents for the watchlisting of persons without independent oversight. The growth of the number of persons on the watchlist has created a system that is difficult to administer, which has led to the inclusion of inaccurate and sometimes questionable information. The alarms triggered by these subjects are so numerous that they have outstripped the government’s resources devoted to conducting screening and law enforcement activities. The current redress process is secret and deliberately opaque, which leads to a perception among some groups that the government’s practices are unfair or discriminatory toward minority communities, particularly those with high concentrations of Arab and Muslim Americans. The animus inspired by these feelings likely creates a barrier to effective cooperation with these same groups.
Civil rights groups and legal scholars have made numerous recommendations to improve the government’s watchlist enterprise. These groups have called upon the government to raise the evidentiary standard for including persons on the TSDB and improve the procedures for auditing the information included in the database. They have called for independent oversight of the government’s watchlist determinations. They have also called for improvements to the government’s watchlist redress procedure to increase transparency and fairness. Some have called for a reorganization of the watchlist bureaucracy to improve efficiency and reduce redundancy.
The analysis of the watchlist enterprise and the criticism from civil libertarians has revealed a series of recommendations. First, the evidentiary standard to list a person on the watchlist should not be changed. Second, the government should extend to all citizens and lawfully admitted permanent residents who request redress of their watchlist status, the procedures recently adopted for No Fly subjects. Third, judicial oversight should be added to the redress process to facilitate an independent review of the government’s watchlisting determinations. Finally, the government should study the feasibility of adopting fixed review periods to ensure that all information contained in the TSDB is regularly reviewed.