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Terror, Watch Lists and Rights: What Do We Want?

5 years ago
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Ten days ago, airline officials let a Nigerian man who paid cash for his ticket sail through security at Amsterdam airport and board a flight for Detroit that he attempted to blow up with explosives hidden in his underwear. The reaction to that Christmas Day breach was outrage.
Today, airline officials are being asked to pat down travelers en route to the United States from 14 countries, including Nigeria, Pakistan, Yemen and Saudi Arabia, and the reaction is: outrage, at least from civil rights groups.
"I understand there needs to be additional security in light of what was attempted on Christmas Day," Nawar Shora of the American-Arab Anti-Discrimination Committee told The New York Times. "But this is extreme and very dangerous. All of a sudden people are labeled as being related to terrorism just because of the nation they are from."

Since 9/11, Americans have wrestled with just how much security they are willing to tolerate in the name of fighting terrorism. If there's an ideal balance between protecting our privacy, rights and dignity and shielding ourselves from people bent on our destruction, we haven't seemed to have found it yet.
President Obama is meeting with his top advisers in the Situation Room today to try to figure out how and why intelligence officials both here and abroad managed to overlook the Detroit bomber, Umar Farouk Abdumutallab, in the face of troubling signs -- including a plea from the man's father, a prominent Nigerian banker, to U.S. Embassy officials in Nigeria that his son had severed relations with the family and was associating with extremists in Yemen.
Unfortunately, that information didn't go where it needed to go, and we now know the rest of the story.
Where Abdumutallab's name ended up is on the largest of several watch lists the government maintains to flag suspected terrorists. That's the Terrorist Screening Database, operated by the FBI. There are some 500,000 names on the list (1.3 million identities, apparently, because of many aliases). They are selected from among thousands of pieces of intelligence that pour into the CIA's computers every day from all over the world. Overnight entries are then examined under FBI direction and "nominated" to smaller watch lists: one called the "selectee" list, whose 14,000 names are subject to extra scrutiny, or the 4,000-name "no-fly' list, which prohibits them from boarding aircraft.
Already the administration is acting to scrub these lists, moving "dozens" of names to other lists, according to deputy White House Press Secretary Bill Burton, subjecting people to further investigation.
The watch lists were put in place years ago by the Bush Administration and quickly became the source of many complaints. The late Sen. Ted Kennedy startled a congressional hearing in 2004 when he disclosed that he had been blocked from boarding airplanes five times because his name resembled one on the no-fly list and ticket agents refused to let him through. Admittedly, his was an extreme case, and airline supervisors overruled the agents, but the senator lamented that it took him weeks to clear up the problem and wondered how ordinary citizens would cope if a prominent senator had had so much trouble.
The American Civil Liberties Union sued the government that year on behalf of seven passengers who were wrongly put on the no-fly list and weren't able to clear up their identities. And members of Congress complained to the administration about constituents caught in the list trap. The result was that even as the overall database of names was being expanded, the smaller watch lists were shrinking: from 30,000 in 2007 to 18,000 today, according to The Washington Post.
Moreover, a Justice Department audit last May of the watch list process overseen by the FBI found that the agency failed to "nominate" many subjects who should have been added to the list and did not update or remove records when cases were closed. Some people on the list were dead. Alarmingly, it said that 78 percent of the initial watch-list nominations were not processed within established time frames. (A similar audit a year earlier had found that the average time for listing subjects was 42 days.)
"Because the consolidated terrorist watch list is used by government frontline screening personnel to determine how to respond when a known or suspected terrorist requests entry into the United States," the report said, "the failure to place appropriate individuals on the watch list, or [the failure] to place them . . . in a timely manner, increases the risk that these individuals are able to enter and move freely about the country.
"In fact,'' it added, "we found that several persons with names matching the subjects who were not watch-listed or were untimely watch-listed attempted to cross U.S. borders during the period the names were not watch-listed by the F.B.I."
So even if Abdulmutallab's name had been nominated for inclusion on the selectee or no-fly list, it may never have reached where it needed to be before the fateful Christmas Day flight.
Now, the government proposes to pat down people from certain countries or put them though whole-body scanners that see through their clothes. Not to be crass, but the underwear bomber had his explosives sewn into the crotch of his shorts. So are security officials now going to cop a crotch-feel on suspicious-looking passengers – or those from selected nations? Or peer into the scanner to make sure there isn't some tiny but potent device hidden in a woman's vagina? At the risk of sounding irreverent, such measures would surely put the civil liberties community's knickers in a twist.
In a report last September examining the government's erratic prosecution of terrorists, and particularly the inability of its various agencies to agree on what constitutes a terrorist, Transactional Records Access Clearinghouse (TRAC) noted the concern over real and potential civil liberties violations inherent in the government's huge watch lists.
"Government records contain little retrievable information about the 6,000 individuals in the last five years whom the government suspected of some kind of involvement in terrorism but then decided not to prosecute," the TRAC report said. "This means that it is almost impossible to measure the real financial, social and political costs involved in the process. How many of the 6,000 lost their jobs because employers became worried about the questions the investigators were asking? How many of the 6,000 felt the need to hire lawyers to challenge the government's incorrect suspicions? How many of the 6,000 were at some point in the process actually detained and briefly held in government facilities before their cases were declined? Except for those rare situations when the individual suspect chooses to make his grievances pubic, these and other kinds of possible troubles never see the light of day.''
The president's review of intelligence policies will examine the watch lists and try to determine what went wrong and how they can be fixed. But I wouldn't expect an overnight improvement. In the ongoing terror wars, the American people need to decide how much information they are willing to let their government collect in the effort to prevent attacks. So far we've sent a mixed message: We want our safety assured, but not at the expense of our rights, our privacy and our dignity.
In the end, that is the right balance. In a country founded on personal freedoms, we shouldn't let ourselves travel that road to Oceania, where complete surveillance is the norm and the Ministry of Truth the people's protector. On the other hand, our government may not ever be competent enough to pull that off.

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