By William Fisher
Hundreds of thousands of people are being wrongly identified because of the government’s wasteful and inefficient management of the nation’s one million-strong terrorist watchlist, according to the American Civil Liberties Union (ACLU).
The organization cited a recent report by the Department of Justice Office of the Inspector General (OIG), which found that the part of the watchlist maintained by the Federal Bureau of Investigation (FBI) may contain a 35 percent error rate.
The OIG audit also revealed that large portions of the list are governed by no formal processes for updating or removing records.
The ACLU says the audit “confirms that the nation’s watchlist system is massively broken.”
The audit confirmed estimates that the terror watchlist contains 1.1 million names as of December 2008, and that many of them are out of date.
OIG auditors reviewed 68,669 of those identities and found 24,000 out of date. In a closer inspection of the out of date records, the auditors found a majority of this sample did not belong on a watchlist.
Attorney General Eric Holder, whose Justice Department oversees the FBI, told a Senate subcommittee this morning that he has not yet read the IG report, but has been told by the FBI that all of the concerns and problems raised in the report have been addressed.
“I am a bit skeptical about claims the FBI addressed all of the concerns and problems raised in the FBI Inspector General’s audit report on the terrorist watchlist,” Chris Calabrese, an attorney with the ACLU Technology and Liberty Project, told us.
“Are they saying that the FBI has reviewed 24,000 watchlist records to determine how many (likely a majority) need to be removed from the watchlist? Has the FBI completely streamlined a process for reviewing records so that people are removed from the watchlist within 10 days? The audit reports the average amount of time to remove an identity from the list is 60 days. And this is just the tip of the iceberg.”
The OIG report documents a widespread failure to scrub the lists by removing names after cases have been closed. For example, one subject stayed on the watchlist for almost five years after the case was resolved; two people on the list were dead. The FBI attempted to place one individual on the watchlist by reclassifying that person as an international terrorist after already having been cleared of wrongdoing by an FBI investigation.
It identified more than 50,000 records with no explanation of why they were on the list, making it impossible to remove them. It described the controls for placing many names on the list as “weak or nonexistent.”
The watchlist has existed since 2003, when then President George W. Bush issued a presidential directive mandating the development of a consolidated terrorist watchlist and required all federal law enforcement and intelligence agencies with terrorism information to share such information. The consolidated terrorist watchlist is known as the Terrorist Screening Database (TSDB).
The Terrorist Screening Center, which also began operations in 2003 and is managed by the FBI, was established to serve as the U.S. government’s consolidation point for information about known or suspected international and domestic terrorists.
“This IG report reveals just what a comedy of errors the watchlist is,” said Chris Calabrese, attorney with the ACLU Technology and Liberty Program. “But we did not need this report to know there is a problem with the effectiveness of any terrorist watchlist that includes over a million names. It certainly explains why Congressman John Lewis and Senator Edward Kennedy have problems when they try to fly.”
And Caroline Fredrickson, director of the ACLU Washington Legislative Office, said "Members of Congress, nuns, war heroes and other 'suspicious characters,' with names like Robert Johnson and Gary Smith, have become trapped in the Kafkaesque clutches of this list, with little hope of escape."
"Congress needs to fix it, the Terrorist Screening Center needs to fix it, or the next president needs to fix it, but it has to be done soon, " she urged, adding,
“This report strongly suggests that hundreds of thousands of people are being wrongly identified as terrorists,” said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. “This is yet more confirmation of what we’ve been saying for years – that the watchlist is not only unfair for travelers, but it is also a waste of scarce resources. It is time for Congress to haul the watchlist policymakers up to Capitol Hill to answer some tough questions.”
The ACLU is recommending a series of controls on the watch lists. These include due process, a right to access and challenge data upon which listing is based, tight criteria for adding names to the lists, and rigorous procedures for updating and cleansing names from the lists.
The group also called on the president to issue an executive order requiring the lists to be reviewed and limited to only those for whom there is credible evidence of terrorist ties or activities. The review should be concluded within 3 months, the group said.
The OIG report also found that putting people on the watchlist was as problematic as getting them off. The Inspector General’s recommendations included establishing timeframe requirements for headquarters units to process watchlist nominations, modifications, and removals; reevaluation of watchlist records that are not sourced to a current terrorism case, and creation of a process to modify and remove known or suspected terrorists placed on the watchlist.
“We believe that the FBI’s failure to consistently nominate subjects of international and domestic terrorism investigations to the terrorist watchlist could pose a risk to national security,” the OIG report said, adding that “FBI field offices’ frequent failure to modify watchlist records indicates a problem with training on and understanding of the importance of the watchlist process.”