The Federal Bureau of Investigation’s (FBI’s) no-fly list is seemingly an uncontroversial and comprehensive approach to ensuring the national security of the United States. However, under closer scrutiny, the list proves to be flawed. Currently, there are approximately 81,000 suspected terrorists listed post 9/11 as it proves to be the simplest way to ensure suspected terrorists are not traveling in and through U.S. airways. Although the premise of a no-fly list and various other terrorist watch lists shows promise, the current processes, rules and regulations reveal vague standards that have little impact on improving our national security.
Adding individuals to a watch list requires three main steps. First, intelligence agencies such as the Central Intelligence Agency (CIA), FBI, or state department must gather information and “nominate” a person for inclusion. Once individuals are nominated, information from participating agencies is sent to the National Counterterrorism Center (NCTC), which administers Terrorist Identities Datamart Environment (TIDE). The FBI also has its own list; however, international terrorist information is still fed to TIDE. In the final step, those listed with TIDE and FBI’s list of domestic nominees are sent to the Terrorist Screening Database (TSDB), a master list that enforcement agencies can match names from and the Transportation Security Administration (TSA) uses to pull no-fly list names during airport screenings.
The no-fly list’s efficacy starts to erode during the nomination process. Criteria for the no-fly list includes individuals who present a threat to the U.S. national security by way of terrorism and are considered operationally capable, based on a standard of reasonable suspicion that “an individual is known or suspected to be or has been knowingly engaged in conduct constituting, in preparation for, in aid of or related to terrorism and/or terrorist activity,” according to 2013 Watchlisting Guidelines. Although reasonable in policy design and formation, the policy fails in practice as people with no ties to terrorism are repeatedly turned away from boarding flights, most famously Senator Ted Kennedy, D-MA. Hidden in the Watchlisting Guidelines are clauses that admit “the nominating agency may not be able to evaluate the reliability of the information received.” The clause raises an issue of clarity since the idea of reasonable suspicion can be met with information that has not been proven reliable. The guidelines for reviewing nominations are puzzling and contradictory. One clause suggests the National Counterterrorism Center review the information for accuracy, yet another section states the NCTC assumes nominators are accurate. This leads to a system plagued with human error. For instance, a Malaysian doctoral student was accidentally flagged as a threat simply because an FBI agent filled out a form incorrectly.
Furthermore, the “reasonable suspicion” standard allows the watch list to include people who have been acquitted of terrorism-related crimes, such that an individual found not guilty of terrorist activity can be labeled as a suspected terrorist. Those labeled as a threat under the “reasonable suspicion” standard face the frustrating predicament of having to prove themselves not guilty of an act that has not and will not occur because by the U.S. government’s own admission, watch lists are based on predictive assessments of what might happen, not what already has. Guiding phrases like “reasonable suspicion” and “credible evidence” become meaningless without set rules, especially when subject to varying interpretations by the various nominating agencies.
On top of unclear standards, the no-fly list also has very little transparency. While there have been some reforms in recent years, there is no real way to appeal placement on it or any other terrorist watch list. The official stance of the U.S. government is to neither confirm nor deny an individual’s placement on any type of watch list. This makes it incredibly difficult to determine if you are even on the no-fly list. Currently, there is no indication of being listed until one is denied boarding on a flight. Even then, one does not learn the reason for denial. The Department of Homeland Security has a redress process, however since they cannot confirm or deny one’s watch list status, there is no way to confirm that someone has been removed from a no-fly or Selectee list. This process was even ruled unconstitutional in 2014 by the United States District Court of Oregon and only led to minor changes in the process. Contesting watch list placement through court is arduous and time-consuming, taking over five years in some cases to resolve even simple paperwork errors. This leaves the nomination process open to abuse, like the FBI allegedly adding four Muslim Americans to the no-fly list to pressure them into becoming informants.
The obvious affront to civil liberties from the no-fly list could possibly be overlooked if it provided a substantial increase in national security. Unfortunately, that does not appear to be the case. One of the last audits of the program by the Office of the Inspector General in 2007 found in 15 percent of their reviewed cases the FBI failed to add suspects to the watch list appropriately and 72 percent of cases closed for lack of evidence were not removed from the list in a timely fashion. As a result, the list is missing dangerous individuals and including those proven or found innocent. One former CIA counterterrorism analyst has criticized the government for not using a “scientifically validated process” for its watch lists.
In order for the no-fly list and similar terrorist watch lists to continue, major reforms of the process are required. The review process needs substantially more oversight and a clear definition of “reasonable suspicion” that is uniform across all intelligence agencies. The NCTC also needs to check the accuracy of the information it is provided rather than assuming intelligence agencies are correct. Additionally, NCTC needs to pressure the FBI to update records in a reasonable timespan. Finally, the redress process needs a clear set of instructions allowing those on a watch list to view what information is being used against them and challenge it if they believe it to be incorrect. As it stands, the nation is in the difficult and compromising position of defending itself using a secret list that is immune to due process with no tangible effect on national security.
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