Jen Daskal commented last week on the revelation of a secret exception to the “reasonable suspicion” standard for adding people to the terrorist watchlist.  I want to raise some further questions about that revelation and other recent developments, which together suggest that the requirement of individual suspicion for terrorist watchlist inclusion is more myth than standard.

To recap, Judge William Alsup of the Northern District of California last week released his unredacted order in Ibrahim v. DHS, a decision ordering the government to cleanse its databases of any errors resulting from the mistaken placement of a Malaysian woman on the No-Fly list.  As Jen noted, the order revealed that despite the plaintiff’s No-Fly list removal and the government’s concession that she is not a threat to national security, she remains in the broader Terrorist Screening Database (TSDB), pursuant to a “classified and secret exception to the reasonable suspicion standard.”  The TSDB is the government’s consolidated terrorist watchlist, from which the No Fly list is drawn, and the government has long maintained that the “general” standard for inclusion on the list is reasonable suspicion that a person is engaged in conduct “related to” terrorist activities.

The confirmation that even this low standard can be bypassed raises two important questions.  First, what is the secret exception referred to here? And second, what other exceptions are there to the reasonable suspicion requirement for putting people on the watchlist?

On the first question, several possibilities come to mind.  One possibility, based on the facts disclosed or hinted in the case, is that the exception authorizes the government to watchlist the spouse or child of a person suspected of terrorist activities.  If that is so, however, it makes little sense that such an exception would be a state secret.  Immigration statutes explicitly authorize the denial of a visa to the spouse or child of a person inadmissible on terrorism-related grounds, so why would a similar basis for watch listing be considered a state secret?  The fact that the exception remains classified raises a second possibility: perhaps there is a broader associations-based exception to the reasonable suspicion standard.  For instance, are other family relationships or associations a permissible basis for adding someone to the watchlist, even in the absence of information linking an individual to activities “related” to terrorism?

A third possibility is that the classified exception pertains to the individual conduct of the watchlisted person, but conduct that does not rise to the level of reasonable suspicion of terrorist activities.  At first, this seems unlikely, because the existing reasonable suspicion standard presents such a low threshold for inclusion, and because in this case, the government conceded that the plaintiff does not present a threat to national security.  But one can imagine (troubling) scenarios where the government might seek to use such an exception.  For instance, could an exception authorize U.S. intelligence officials to watchlist a person at the request of a foreign government even where the information provided does not rise to the level of reasonable suspicion of terrorism?

This is all guesswork, and perhaps none of these suggestions hits the nail.  The bigger question is why the exception is classified to begin with.  The standards for watch listing ought to be public, even where the government has legitimate reasons for not disclosing particular intelligence information in individual cases.  But perhaps the government doesn’t want to reveal those standards precisely because that would make apparent how far terrorist watchlisting has moved from any requirement of individually based suspicion.

That brings us to the second question.  What other exceptions are there to the reasonable suspicion requirement for putting people on the watchlist?  The release last month of a new Justice Department Inspector General (IG) audit on terrorist watchlist procedures sheds further light on how the Terrorist Screening Center has bypassed that standard in the past, and how it is authorized to bypass it again.  The report discusses in new detail the drastic changes made to the terrorist watchlist in the wake of the Christmas Day 2009 attempted “underwear bombing” of a Detroit-bound airliner.  (The perpetrator had not been placed on the TSDB prior to the incident despite his father’s warnings to the U.S. Embassy that he might present a threat).  Immediately after the failed attempt, the FBI’s Terrorist Screening Center added entire categories of individuals identified because of their connections to several (undisclosed) countries.  According to the audit, the Terrorist Screening Center recognized that, based on pre-existing criteria, “[m]any of these individuals did not qualify for inclusion in the watchlist, much less elevation to the No Fly List” subset of that database.  In fact, “many of the persons watchlisted and upgraded to the No Fly List were individuals without any information indicating a personal involvement in terrorism.”  (Note: these changes occurred after the 2009 watchlisting of the plaintiff in Ibrahim, so the secret exception discussed above does not seem directly related).

I don’t know why the IG’s account of bulk, country-based additions to the watchlist has not gotten wider attention.  It’s not just that the Terrorist Screening Center barred people from flying based on country connections, without any information indicating a personal involvement in terrorism.  The IG also tells us that it took two years to individually review those files to determine whether the people added really belonged on the list.  In fact, the IG questioned whether everyone who was added has received an individualized review, even now, stating that because of documentation problems, “we have concerns about the TSC’s ability to ensure that all watchlist records that were modified as a result of the attempted attack were reviewed and returned to the appropriate individualized status.”  Thus, four years after bulk additions to the watchlist, some people added without any indication of personal involvement in terrorism may still be on it.

And what will happen during the next emergency, real or claimed?  The report notes that a new watchlist protocol adopted in 2010 now permits temporary “threat-based modifications” to the TSDB and No Fly list of the kind adopted in the wake of the Christmas Day attempt.  The report makes clear that these modifications would apply to entire categories of individuals, presumably to be chosen based on country connections or other easily generalizable characteristics.  New database features, we are told reassuringly, will make it easier to identify those who meet such “threat-based” criteria.  But the fact that it will now be easier to identify and tag groups of individuals meeting some broad criteria is reason for concern, not reassurance.  With the apparent authority and technical means to do so, what incentive is there for intelligence officials not to “upgrade” large categories of people in response to perceptions of a heightened threat from some part of the world, even in circumstances that are not truly emergencies?

Perhaps it’s time to call the requirement of individual “reasonable suspicion” for terrorist watchlisting not a standard, but a myth.