Despite a federal judge’s ruling last September that the U.S. government’s terror watch list violates constitutional rights, an FBI report obtained by Yahoo News shows local and state law enforcement agencies are being used to gather intelligence on individuals to collect information about those already in the database.
Law enforcement “encounters of watchlisted individuals almost certainly yield increased opportunities for intelligence collection,” says the FBI document, dated more than a month after the federal court ruling. The FBI says such encounters could include traffic stops or domestic disputes, which gives law enforcement “the opportunity to acquire additional biographic identifiers, fraudulent identification documents, financial information and associates of watchlisted individuals,” which might assist in thwarting terrorist acts.
The Terrorism Screening Database, widely known as the watch list, was created in 2003 and consists of names of people suspected of being involved with terrorism. Over the years, the list has grown to include the names of 1.1 million people, raising concerns that many of those on the list have no involvement in terrorism but have little or no legal resources with which to challenge the designation.
People can be put on the watch list for “reasonable suspicion,” a loosely defined category that allows anyone related to a suspected terrorist or considered somehow to be an “associate” to end up on the list, even if the government has no evidence of the individual’s involvement in terrorist activity, according to a copy of the guidelines published in 2014 by the Intercept.
Last year, a federal judge found in favor of 23 Muslim Americans who argued that their inclusion in the Terrorist Screening Database violated their constitutional right to due process.
“There is no evidence, or contention, that any of these plaintiffs satisfy the definition of a ‘known terrorist,’” wrote Judge Anthony J. Trenga of the Eastern District of Virginia on Sept. 4, 2019. Trenga noted that being put on the watch list “does not require any evidence that the person engaged in criminal activity, committed a crime, or will commit a crime in the future and individuals who have been acquitted of a terrorism-related crime may still be listed.”
Trenga asked the government to propose revisions to the watchlist. Instead, the government filed an appeal and a motion to stay the district court case. A hearing in that case is now scheduled for Feb. 14.
Yet even as the government is under pressure to revise the watch list, it appears to be using police to rapidly expand the information it is collecting for those currently on it, and possibly adding new names. The FBI document on law enforcement encounters with watch-listed individuals says that between 2015 and 2018, the government was able to collect almost 5,000 new “biographical identifiers.”
Those “biographical identifiers” include a wide range of information, according to another document obtained by Yahoo News. A “First Responders Toolkit” provided to law enforcement instructs police to collect information on both the watch-listed individual and any other person in the car, including “license, passport, and visa and information.” It also instructs police to gather information in a “non-alerting manner” about languages spoken and travel plans, and to take “photographs or videos when possible.”
The FBI also warns police not to let those they stop know they may be on the watch list, and instructs law enforcement not to record a suspect’s watch list status on any arrest reports or other documents. “Criminal history records are releasable under the public records act,” the toolkit document says.
The FBI watch-list document “provides further confirmation that the federal government is using unreliable and expansive watch lists as an excuse to collect whatever personal data it can from people, the vast majority of whom have done nothing wrong,” said Hugh Handeyside, a senior staff attorney at the ACLU’s national security project.
The practice of using unintended contact with watch-listed individuals as opportunities for intelligence gathering increases the likelihood “that when state and local law enforcement officers stop people they think are watch-listed, those detentions will be longer and more intrusive than they otherwise would be, raising serious constitutional concerns,” Handyside added.
The FBI watch list document underscores just how common such contacts with watch-list individuals are: A map shows that over the past two years, the police have reported encounters with watch-listed individuals in every state, including Hawaii and Alaska.
An FBI spokesperson did not respond to questions about the watch-list document. In response to the court ruling, the spokesperson said the bureau “does not comment on pending litigation.”
The FBI document, dated Oct. 23, 2019, highlights several recent cases involving law enforcement, including one in Buena Park, Calif., in January 2018 when local police officers arrested an associate of a suspected international terrorist getting into a stolen car. The person led police officers to a hotel room where the suspected terrorist and an accomplice were found in possession of illicit drugs and counterfeit-money-making tools.
In two later incidents that took place in August 2019, Colorado State Patrol and Wyoming Highway Patrol officers pulled over watch-listed people for traffic violations, enabling the officers to collect additional information about the individuals, including “a driver’s license photo … new addresses, a contact number, vehicle information, and a driver’s license.”
In the cases described in the FBI document, there is no identifying information provided about the people stopped by law enforcement, or whether any of them, or their associates, had been charged or convicted of terrorism.
Critics of the watch list said the document provides evidence that the government is using the it as a pretext to collect intelligence on people, even without evidence they’ve engaged in terrorism.
Matthew Callahan, a staff attorney at Muslim Advocates, a national civil rights organization, says the document appears to demonstrate that any encounter with law enforcement can become a pretext for intelligence gathering on unsuspecting persons.
“It says, ‘You’re going to be encountering these people as they board planes, get stopped for traffic stops, but we are now going to use them to gather info for our own law enforcement priority.’”
Another concern for critics of the watch list is that the police may be mistakenly flagging people they stop as watch-listed individuals, when they are not, which appears to be demonstrated by the FBI document. The document notes that of 35,000 interactions reported by law enforcement, only 3,600 of these “positively matched watchlisted individuals,” according to Terrorist Screening Center data.
“The numbers are the most important part,” says Gadeir Abbas, an attorney for the Council on American-Islamic Relations (CAIR), who represented the 23 plaintiffs suing over the watch list. “The fact that 35,000 actions between local law enforcement have been possible matches and only 10 percent of those have actually been confirmed matches is an indication that it’s a system that is wildly inaccurate.”
Daryl Johnson, a former lead analyst for domestic terrorism at the Department of Homeland Security, said it’s standard procedure for law enforcement agencies to take advantage of such encounters “to find or observe information, see things or talk to the individual.”
However, the challenge the watch list poses, said Johnson, is how to effectively purge individuals from the list once it’s clear that they have nothing to do with terrorism.
Johnson, who now runs DT Analytics, a private consulting firm for law enforcement, said that in 2005 he was flagged as a potential threat at an airport even though he was carrying credentials from the Bureau of Alcohol, Tobacco, Firearms and Explosives. “I was actually screened at an airport because my name was the same as an Irish Republican Army terrorist,” Johnson said.
While the FBI document provided to Yahoo News shows only examples of watch-listed people being correctly identified, Baltimore police department guidelines and a deposition from 2017 provided by CAIR lawyers illustrate how the watch list can be used to detain individuals based on even minor infractions, even without evidence they pose a threat.
According to the Baltimore police document from 2016, if the police stop someone with a positive match for the terrorist watch list, it triggers a 10-80 notification. If that happens, and the person has an outstanding arrest warrant, the person is to be arrested, isolated, prevented from making phone calls and have any electronic devices confiscated. An individual stopped by police can also be detained and isolated if deemed of “investigative interest.”
“The nomenclature of the handling codes is nonsense on stilts,” said Abbas, the CAIR attorney.
One person represented by CAIR lawyers described being pulled over in Michigan for a minor traffic violation in 2014, according to the transcript of a 2017 deposition obtained by Yahoo News.
After turning “hard” in the middle lane, the man explained during the deposition, a police officer pulled him over. But what began as a traffic stop quickly escalated. Within five minutes, said the man, police surrounded his car, handcuffed him and made him wait in the back of a cruiser while they searched his car for more than half an hour.
The man’s brother, who notified police that his backpack contained a small amount of marijuana, was also placed under arrest.
During the search, officers found a broken airsoft gun with an orange tip — a toy. Police brought the brothers back to the local police department. While being processed, the man saw a police document that said “FBI; hold, no call.”
“One of the officers said that I must have done something really bad to get the FBI involved,” recounted the man, who requested anonymity through his lawyers, under deposition.
The next day, police released the man on bond, charging him with a weapons offense and reckless driving. Following six months of litigation, the weapons charge was dropped and the reckless driving charge was brought down to careless driving.
Even in cases in which the person is ultimately released, such as the man in Michigan, the information collected during the law enforcement encounter would appear to remain in the watch-list database.
Callahan, the lawyer for Muslim Advocates, expressed particular concern at the mention of biometric data, which can include fingerprints or other unique identifiers. The FBI document from October states that “biometric identifiers” and biographical information submitted to the Terrorist Screening Center will help the U.S. government “and foreign partner screening.”
“Biometric markers are different from other types of surveillance. Once someone has your fingerprints you’re not going to be able to reset your fingerprints,” said Callahan. “And that’s a particularly pernicious kind of information for law enforcement to be gathering because they will have that information for all time.”
For Callahan, this use of a law enforcement encounter to enhance the watch list poses a unique threat to civil liberties.
“Given who is placed on these watch lists, which we know to be so error-prone and over-inclusive,” he said, “you really are committing to a level of surveillance — of an entire community — that Americans should not be comfortable with.”
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