A document revealing the flexibility with which United States officials may place individuals on watch lists and deem them terrorists without concrete proof was released by The Intercept on Wednesday. The “March 2013 Watch listing Guidance” suggests the use of such vague notions as “reasonable suspicion” and says that ‘irrefutable evidence of concrete facts are not necessary” to evaluate a suspect and place people onto lists that may bar individuals from traveling by air.
RT: The leaked US government guide itself says that “watchlisting is not an exact science.” Why was the project given the green light despite failing to provide basic safeguards for US and foreign citizens who may well be innocent?
J.D. Tuccille: It is more an open-ended authorization than guidance. Maybe someone some time intended this to be guidance, a way of determining how people would be nominated to be on this watch list. In fact this is more of a back catcher; it just authorizes people pretty much at a whim to put supposed suspects on the terrorist watch list for very little reason. The suspicion that it requires can be anything at all – it can be a tweet, it can be an association, any exchange or interests that you have, or maybe a fiery political statement you made, though they assure us that free speech is protected. The fact is that this document is something that they can point to. It is not guidance, it is an authorization and it is open-ended.
RT: People cannot even find out if they are on the list. Is that legal?
JDT: This is technically an unclassified document, but the Justice Department has invoked state secrets which is something that is pretty foreign to the US tradition. In a lawsuit brought by someone who was added to no-fly list it refused to disclose it, it insisted that the courts should not turn it over because it would be a threat to national security. That is ridiculous. It might be embarrassing to the national security state. But no, there is no way to find out that you are on the list until you can’t get on an airplane. There is no real appeals process. You can object and kind of go through a form, but there is no way to get yourself off various watch lists that are included in here. And there is no justice, there is no due process involved in this at all. So how do you find out that you are on there? The hard way.
RT: More than 1.5 million have reportedly been added to the list in the last five years. Can the system deal with so much information?
JDT: I very much doubt that. It is very easy to suck up data; it is very hard to process data. The one is just the open-ended vacuum cleaner, it starts sticking stuff into data banks. Doing something with that information is entirely different. You actually need people or very good computer algorithms, but mostly you need people who can process this information. We saw that with the Boston bombing where the names of the Tsarnaev brothers were in the database, but it did not do anybody any good, there were in the database, but they weren’t able to stop the bombing, because there is no way to process all the names, all the data, all the information that has been sucked up by the system. This allows bureaucrats to point to these data bases and watch lists and say “See, we are doing something. We are trying to make you safe.”
RT: American citizens are growing weary of counter-terrorism rhetoric, we have seen a number of protests against human rights violations of late. Why are these calls are being ignored?
JDT: The government has two imperatives, and the most important one is to cover their own butts. Government officials were caught out by 9/11. They were accused of interagency fighting – that is true. There were accused of doing not enough to protect their own country, which is probably unfair – it is very hard to protect against a kind of attack we faced on 9/11. And they did not want to see this happen again. So, civil rights liberties groups may raise a fuss, but that is not as strong an imperative as trying to protect their own careers, and make it look like they were being proactive, because they brought it in a system. We cannot blame an individual, we are going to protest procedures, and we are going to protest high officials. We are not going to protest faceless and nameless state security bureaucrats, who actually do all of this.
RT: A Virginia man filed a lawsuit challenging the constitutionality of the no-fly list after he was stranded in Kuwait. Do you expect more legal cases like this one in the future?
JDT: Yes, and we have seen some successes. Judges have just been mind-boggled by what they discovered from the federal government, or in many cases by the extent they have been stonewalled by the federal government, their insistence on secrecy and lack of due process by federal officials. So some judges have been ordering the government to turn the data over, implemented appeals processes and allowed for some element of justice in the system. We will see more lawsuits, because we see an injustice, and we are likely going to see more judges delivering the justice people seek.