The Constitutional Nightmare of the Terror Watch List

The government's newly revealed guidelines for tracking individuals are a Kafkaesque mess built on hubris.
Cassandra Kinaviaq Rae/Flickr

At long last, Americans know more about how people end up on a terrorist watchlist—though still not much.

Early on in a just-leaked 166-page U.S. government guide to officially declaring someone a terrorist or suspected terrorist, a passage acknowledges that "watchlisting is not an exact science." The whole enterprise has "inherent limitations," in part because "analytic judgments may differ regarding whether subjective criteria have been met," the document states. "Given these realities, the U.S. government's watchlisting process attempts to safeguard the American people from a TERRORIST attack while safeguarding privacy, civil rights and civil liberties."

Despite this explicit, official recognition of the system's inherent dangers, the Bush and Obama administrations both conspicuously failed to incorporate basic safeguards to protect innocent U.S. citizens and foreigners from inclusion. Their gross negligence stems from disregard for longstanding legal norms and protections and from unwarranted faith in the federal bureaucracy. This hubris is at direct odds with the logic of checks and balances within the American system that go back to the founding of the country. 

Consider the features of the U.S. system that have traditionally distinguished us from repressive regimes where innocents are wrongfully labeled enemies of the state, or from Franz Kafka's stories:

  • Clearly written, publicly available standards, subject to ongoing debate about their appropriateness, indicating how an individual could run afoul of the law.
  • Due process, or the ability to challenge government findings before a neutral arbiter.
  • Checks and balances, so that no one branch of government can seal a citizen's fate.
  • Clarity regarding whether an appeal to the government's system has failed or succeeded.

The government's actual guidelines, kept secret for years and published at The Intercept Wednesday alongside an article by Jeremy Scahill and Ryan Devereaux, show a system where all citizens are unaware of what might result in their being placed on a terrorist watch list. They are unable to verify whether or not they've been designated as an enemy or suspected enemy. They can't challenge their status before a neutral arbiter or know the result of any status challenge that they do file.

The Obama administration has tried to run a system where watch-list standards are beyond public knowledge and debate, and where individual determinations are made entirely within the executive branch, short-circuiting checks and balances. This degree of secrecy and arbitrariness used to be considered un-American.

As The Intercept accurately puts it, "The Obama administration has quietly approved a substantial expansion of the terrorist watchlist system, authorizing a secret process that requires neither 'concrete facts' nor 'irrefutable evidence' to designate an American or foreigner as a terrorist." Even today, the government continues to use and defend "a confounding and convoluted system filled with exceptions to its own rules," which "relies on the elastic concept of 'reasonable suspicion' as a standard for determining whether someone is a possible threat," and snares individuals "if they are suspected of being a suspected terrorist, or if they are suspected of associating with people who are suspected of terrorism activity." 

There is no defense for the Obama administration's avowed belief that a system so opaque and unchallengeable can protect the civil rights and civil liberties of those subject to it. Congress earns its own criticism for permitting two successive presidents to transgress against core American norms and values in this realm. The former constitutional-law lecturer in the Oval Office knows that this system violates basic rule-of-law norms, but has evidently persuaded himself that normal safeguards aren't needed so long as he is in charge. Obama defenders should recalibrate their esteem for the president accordingly. 

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Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

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