There are numerous ways you can find yourself on a terrorist watchlist, If overseas, you could be stranded, costing your employment or reunion with your family. You could be detained and, certain lawsuits allege, tortured by foreign governments.
Yet the ease with which someone can be placed on US watchlists and terrorism databases contrasts markedly with the impact placement has. A long-withheld document published on Wednesday by the Intercept detailing the guidelines for placement shows that the standards for inclusion are far lower than probable cause, and the ability for someone caught in the datasets to challenge their placement do not exist. In 2013, the governments made 468,749 nominations for inclusion to the Terrorist Screening Database, up from 227,932 nominations in 2009; few are rejected.
The rise – and the low standards the Intercept documented – is partially explained by the near-miss airliner bombing in Christmas 2009, by a man connected to a Yemeni branch of al-Qaida. Partially it is explained by the overwhelming secrecy surrounding the process: attorney general Eric Holder has called it a state secret (although the guidance document itself is unclassified), preventing meaningful outside challenges that would recalibrate a balance between reasonable expectations of security and liberty.
That secrecy, as the Intercept’s publication indicates, is starting to erode – slowly. Recent court cases have given the beginnings of insight into how the US government’s apparatus of terrorism databases and watchlists works in practice. Here is a guide.
They’re reading your tweets
The watchlisting guidance says that “first amendment protected activity alone shall not be the basis” for nominating someone to the lists. The key word: alone. What you say, write and publish can and will be used against you. Particularly if you tweet it, pin it or share it.
The guidelines recognize that looking at “postings on social media sites” is constitutionally problematic. But those posts “should not automatically be discounted”, the guidelines state. Instead, the agency seeking to watchlist someone should evaluate the “credibility of the source, as well as the nature and specificity of the information”. If they’re concerned about a tweet, in other words, they’re likely to go through a user’s timeline. That joke about that band blowing up could come back to haunt you at the airport.
Where you go might get you placed on the list – and then stranded
Contained within the guidance is a potential reason why many US Muslims find themselves abruptly unable to return from trips abroad without explanation.
An example given of “potential behavioral indicators” of terrorism is “travel for no known lawful or legitimate purpose to a locus of TERRORISM ACTIVITY”.
Not defined: “lawful”, “legitimate” or “locus”. That could mean specific training camps, travel to which few would dispute the merits of watchlisting. Or it could mean entire countries where terrorists are known or suspected of operating – and where millions of Americans travel every year. SEE MORE ON PAGE2