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'A Comedy of Errors': Why It's Time to Get Rid of the So-Called Terrorist Watch List

A new report finds people on the terrorist watch list can more easily buy guns than board planes. But the real problem lies deeper than that.

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'A Comedy of Errors'

Chris Calabrese is counsel for the ACLU's Technology and Liberty Project in New York. He recently called the TSC watch list a "comedy of errors."

The occasion, just last month, was an audit by the Inspector General of the Department of Justice. Among its findings: Of more than 68,000 names on the terrorist watch list, the DOJ found that 35 percent were outdated.

The report mirrored previous assessments of the watch list, including an audit released in March 2008 that led to headlines such as, "Terrorist Watch List Riddled With Errors."

"The government's terror watch list includes inaccurate and outdated information, increasing the risk that innocent people will be misidentified as terrorists, while terrorists are overlooked," Marisa Taylor, a McClatchy reporter, wrote last spring. The most recent audit proves that this is still very much the case. According to the DOJ inspector general, "The failure to place appropriate individuals on the watch list, or the failure to place them on the watch list in a timely manner, increases the risk that these individuals are able to enter and move freely about the country."

Never mind guns; Calabrese argues that the true problem at the heart of this latest controversy is the terrorist watch list itself. "I think the real question is more about why anyone should have their rights deprived," he says. "The way it is constituted right now, innocent people are routinely being denied their right to fly."

A Post-9/11 Scheme

The Terrorist Watch List began as a project of the FBI's Terrorist Screening Center, an agency created in 2003. Like many of the Bush administration's post-9/11 schemes -- think Tom Ridge and color-coded terror threat levels -- the watch list quickly proved to be problematic and controversial, in no small part because it was shrouded in secrecy. (Simply put, undisclosed names are placed on the list according to undisclosed criteria.)

As the May audit reminds us, unlike existing lists of suspects, the TSC watch list was designed to consolidate the names of suspected domestic terrorists as well as international terrorists, who are added through a multiagency "nomination" process.

The audit reports: "FBI policy requires that all subjects of international terrorism investigations be nominated to the consolidated terrorist watch list. It also requires that any known or suspected domestic terrorist who is the subject of a full investigation be nominated to the watch list." However, "Under special circumstances, FBI policy also allows for the nomination of known or suspected terrorists for whom the FBI does not have an open terrorism investigation."

If that sounds pretty broad, it is. "It's clear that it started as a real sort of cover-your-butt list," Calabrese explains. Unlike existing (and public) lists targeting people who had some sort of documented proof against them, the TSC list became a catch-all tally of just about anyone who might merit suspicion, for anything, by anyone -- just in case they proved to be a terrorist down the line.

"Put it this way: Nobody ever lost their job for putting somebody on a list," Calabrese says. "So, for example, according to the DOJ, there are some 50,000 names on the TSC list that were just dumped there by the Department of Defense, but no identifying information about why they might be dangerous."

Indeed, the U.S. military's contribution to the terrorist watch list recalls its notoriously flawed process of sweeping up prisoners to send to Guantanamo after 9/11. According to the DOJ audit, "shortly after the initial United States invasion of Afghanistan in late 2001, the FBI decided to deploy special agents to Afghanistan in an effort to collect fingerprints and other identifying information from known or suspected terrorists … these FBI deployments resulted in the collection of thousands of fingerprints of military detainees in Afghanistan and Iraq."