'A Comedy of Errors': Why It's Time to Get Rid of the So-Called Terrorist Watch List
If the recent outbreak of right-wing gun violence wasn't alarming enough, this week brought news that people whose names appear on the U.S. government's terrorist watch list have somehow managed to purchase firearms at a frighteningly steady rate.
Just how steady? According to a new report by the Government Accountability Office, folks on the list bought guns 865 times -- in 963 attempts -- over a five-year period. And not just guns -- at least one person purchased more than 50 pounds of explosives.
Scary, right? But don't seek out a Dick Cheney-style bunker just yet. Although some media outlets were quick to announce that "terrorists" can now buy guns more easily than they can board planes, these alarming headlines should have carried a pretty bold disclaimer: If the bad news is that people on the terrorist watch list can buy guns as easily as any law-abiding hunting enthusiast, the good news is that the so-called terrorist watch list is a total sham.
The 'Terror Gap'?
But first, the guns.
It may come as a surprise to most Americans that having your name on the government's terrorist watch list is not enough to render you unqualified to own dangerous weapons. Yet, according to the GAO study: "Under current law, there is no basis to automatically prohibit a person from possessing firearms or explosives because they appear on the terrorist watch list.
"Rather, there must be a disqualifying factor (i.e., prohibiting information) pursuant to federal or state law, such as a felony conviction or illegal-immigration status."
Of the 10 percent of unsuccessful attempts to purchase guns documented by the GAO, these factors -- and not the person's place on the watch list -- were to blame.
The GAO study was carried out at the behest of Democratic Reps. John Conyers of Michigan, chairman of the House Judiciary Committee, and Robert C. Scott of Virginia, chairman of the Subcommittee on Crime, Terrorism and Homeland Security, as well as New Jersey Sen. Frank Lautenberg. The men had requested an update to a 2005 report, "Gun Control and Terrorism: FBI Could Better Manage Firearm-Related Background Checks Involving Terrorist Watch List Records," whose conclusions pretty much speak for themselves.
The disturbing findings of the new study were met with predictable political outrage.
"The special-interest gun lobby has so twisted our nation's laws that the rights of terrorists are placed above the safety of everyday Americans," Lautenberg declared in a written statement this week. "The current law simply defies common sense."
Lautenberg called the GAO report "proof positive that known and suspected terrorists are exploiting a major loophole in our law, threatening our families and our communities."
"This 'terror gap' has been open too long, and our national security demands that we shut it down," he said.
This week, Lautenberg introduced legislation to close the "terror gap." The "Denying Firearms and Explosives to Dangerous Terrorists Act of 2009" would "provide the attorney general with discretionary authority to deny the transfer or issuance of a firearm or explosives license or permit when a background check reveals that the purchaser is a known or suspected terrorist, and the attorney general reasonably believes that the person may use a firearm or explosives in connection with terrorism."
On its surface, this might seem a legitimate counterterrorism measure as well as an important check on the out-of-control gun lobby (which, let's face it, wants to see firearms in churches, on school campuses and just about everywhere else). But for those who are stoking Americans' fear over "known and suspected terrorists" buying guns, an inconvenient fact remains: the government's so-called terrorist watch list -- an initiative of the FBI's Terrorist Screening Center -- is, not-so-technically speaking, a complete joke.
'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."
By one estimate, since then, "approximately 50,000 military detainees" had been nominated to the watch list.
Crucially, the audit found, "the FBI was not reviewing each nomination and that the determination that these individuals as known or suspected terrorists was being made by the DoD using DoD criteria."
Who are these 50,000 detainees? Did they end up at Guantanamo? Bagram Air Base? Are they actually terrorists?
We cannot know for sure: The full list of names on the TSC watch list remains classified.
Over 1 Million and Counting
Anonymous military prisoners aside, several well-publicized reports in the past few years have found serious problems with the terrorist watch list when it comes to the names of ordinary -- and not-so ordinary -- people.
In 2006, for example, 60 Minutes obtained a copy of the government's No Fly List, which comprises names culled from the Terrorist Screening Center's master list.
Among the hardened terrorists it found on the government watch list? Nelson Mandela, Bolivian President Evo Morales, Georgia Democratic Rep. John Lewis, countless civilians (with the misfortune to be named Gary Smith, John Williams or Robert Johnson), and numerous dead people.
But the "first surprise," according to a segment that aired in October 2006, "was the sheer size of it."
In paper form, it is more than 540 pages long. Before 9/11, the government's list of suspected terrorists banned from air travel totaled just 16 names; today there are 44,000. And that doesn't include people the government thinks should be pulled aside for additional security screening. There are another 75,000 people on that list.
With Joe Trento of the National Security News Service, 60 Minutes spent months going over the names on the No Fly List. While it is classified as sensitive, even members of Congress have been denied access to it. But that may have less to do with national security than avoiding embarrassment.
Asked what the quality is of the information that the TSA gets from the CIA, the NSA and the FBI, Trento says, "Well, you know about our intelligence before we went to war in Iraq. You know what that was like. Not too good."
... 60 Minutes certainly didn't expect to find the names of 14 of the 19 9/11 hijackers on the list, since they have been dead for five years. 60 Minutes also found a number of high-profile people who aren't likely to turn up at an airline ticket counter any time soon, like convicted terrorist Zacarias Moussaoui, now serving a life sentence in Colorado, and Saddam Hussein, who, at the time, was on trial for his life in Baghdad.
In 2004, the ACLU sued the Bush administration on behalf of several plaintiffs who had been wrongfully placed on the list, including a college student, an Air Force sergeant, an attorney, and a U.S. citizen from Pakistan who worked for the ACLU. The lawsuit was unsuccessful, however.
Meanwhile, the list has continued to grow. Last summer, the number of names hit 1 million, a figure so staggering the ACLU added a handy Watch List Counter to its Web site. Now, the number is over 1.1 million -- and counting.
Time to Scratch the List
Not surprisingly, the terrible reputation of the TSC's terrorist watch list has provided ammunition to gun lobbyists to criticize the veracity of this week's GAO study and the legislation it has inspired.
"The integrity of the terror watch list is poor, as it mistakenly contains the names of many men and women, including some high-profile Americans, who have not violated the law," Chris W. Cox, the National Rifle Association's head lobbyist, argued in a statement this week. According to Cox, giving the attorney general new authority to block gun sales to anyone on the list would thus mean inevitably denying innocent Americans their Second Amendment rights. In this case, regardless of where one comes down on the gun debate, the NRA has a point.
Likely anticipating such arguments, Sen. Lautenberg's legislation would allow people to appeal decisions by the attorney general to deny them the ability to purchase a gun. But when contacted by AlterNet, his staff would not say whether the senator would address the proven -- and highly publicized -- flaws in the terrorist watch list.
He will have to at some point. Basing legislation on such a flawed counterterrorism tool will inevitably undermine it.
More importantly, however, the latest finding on guns only underscores what a useless and counterproductive tool the TSC watch list has proved to be. It’s long past time politicians made it a priority to overhaul the so-called terrorist watch list, if not scrap it completely.
The ACLU's Calabrese argues there is no reason the list can't be retired. After all, it is still a new invention. "We already have lists of dangerous people," he says. "We have no problem with the FBI's Most Wanted. Those lists work for a reason. There's a process in place to do this in the right way."
But, politically this poses a daunting challenge. Although the ACLU called on President Barack Obama to order a "thorough review" of the terrorist watch list when he was elected, so far, there are few signs that his administration will follow through.
"A lot of people seem to think that these problems have been solved now that Barack Obama was elected," Calabrese says. "But, in fact, what has happened is that they've been institutionalized."