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By Jay Stanley, Public Education Director, ACLU Technology and  Liberty Program

The New York Times has a good overview of the situation with U.S. watchlists today. As the ACLU has been pointing out for years, it is a mess. The Times story, written by Mike McIntire, focuses on a Stanford University doctoral student and mother of four named Rahinah Ibrahim, whose name was found on the no-fly list when she tried to fly out of the United States. She was handcuffed, searched and jailed. And then released without explanation. And then had her U.S. visa revoked, blocking her from returning to the U.S., again without explanation. And of course, like everybody else whose name comes up on one of these watchlists, she could not learn why she is on the list or how to get off.

Capriciousness, arbitrariness, and lack of due process — yes, that pretty much sums up the U.S. watch list system. The word is Kafkaesque.

There are several other elements of the system that the New York Times story does a good job at surfacing:

  • The role of the private sector. The Times reports a very interesting new piece of information about the operation of the watchlists. When Ibrahim triggered the no-fly list at the airport, according to the report, the San Francisco police contacted Washington, where an employee of U.S. Investigations Services, a private company contracting for DHS, told the San  Francisco police to arrest her. In the United States, nobody is supposed to be arrested without probable cause that they have committed a crime. Evidence. Individualized evidence. The idea that someone can be arrested based on the fact that their name is knocking around somewhere within the none-too-competent security bureaucracy, at the direction of a corporate contractor 2,500 miles away, just sums up what's wrong with the watchlist system.

  • The role of "suspicious activity reporting." As the ACLU has reported on (for example, here and here) and the Times notes, there is a new enthusiasm for suspicious activity reporting within the security establishment. What it translates into is the logging and reporting of a broad range of innocent, everyday behavior, and innocent people harassed for no reason, especially when they look like Arabs or Muslims. The Times describes how a pilot (and converted Muslim) named Eric Scherfen found himself being detained at airports — endangering his job — after a coworker reported suspicions about him to the authorities.  Shades of nightmarish totalitarian societies, where an enemy could get you in hot water by reporting you to the secret police.

  • The role of secrecy. In her lawsuit over her arrest, Ibrahim has had to battle against a government which has used secrecy at every turn to try to defend its actions.  Ultimately, as the Times reports, "a federal judge scoffed at the government's claim for secrecy" and accused the government of "abusing" the secrecy privilege.

The United States can't simply throw together new infrastructures like the watch lists without including rigorous due process procedures. But that's what the Bush administration did, and the Obama administration is moving full steam ahead. Fairness and due process need to be baked into this system at the deepest level (at the end of this piece we suggest the main elements of what that should be), not an afterthought patched on later.

Originally posted to ACLU on Wed Apr 07, 2010 at 02:31 PM PDT.

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