No-Fly List Is Only One of Many U.S. Watchlists

The Wall Street Journal
By Byron Tau
Dec. 8, 2015 5:30 a.m. ET


WASHINGTON—Last week’s mass shooting in San Bernardino is sparking a renewed debate about one of the most controversial domestic aspects of the war on terror: the U.S. government’s watchlists.

The federal government maintains several databases of people suspected of links to terrorism, including a no-fly list barring certain individuals from boarding airplanes in the U.S.

Those databases, especially the no-fly list, have long been challenged by civil libertarians over the lack of transparency about how and why people are included. Most individuals in the databases have never been charged with a crime and are only suspected of being involved with terrorism.

The no-fly list itself is the smallest of all the government terrorism watchlists with about 16,000 names at last count, though it has attracted the most public criticism and legal challenges. A federal court this year declared the government’s system for dealing with appeals and challenges to inclusion on the no-fly list are unconstitutional.

Passengers on the no-fly list are denied the ability to board flights, but previously weren’t given an explanation why. In response to a lawsuit, the government said this year it would tell passengers if they were on the list and offer them an opportunity to provide additional information as part of an administrative appeals process to potentially be removed from the list.

In the wake of the California attack that killed 14 people and that investigators say may have been inspired by Islamic State, Democrats want people who are banned from air travel to also be prevented from buying weapons. Republicans say such a ban would be overly broad and may deprive some Americans of their constitutional right to bear arms.

The text of a Senate bill didn’t explicitly mention either the no-fly list or any other terrorism list, but Democratic sponsors said it would in practice ban those on the government lists from buying guns. The proposal, which would gave the attorney general the power to block gun sales, was defeated in the Senate last week.

Still, President Barack Obama continued to make the case for the proposal in a speech from the Oval Office Sunday night. “Congress should act to make sure no one on a no-fly list is able to buy a gun. What could possibly be the argument for allowing a terrorist suspect to buy a semi-automatic weapon?” he said.

Some Republicans and other gun rights supporters have pointed to the high error rates and false positives in the government’s terrorism databases. In one notable incident, the late Massachusetts Sen. Ted Kennedy, a Democratic Party icon, was singled out for special scrutiny at airports because his name matched an alias used by a terrorist suspect.

“These are everyday Americans that have nothing to do with terrorism, they wind up on the no-fly list, there’s no due process or any way to get your name removed from it in a timely fashion, and now they’re having their Second Amendment rights being impeded upon,” Sen. Marco Rubio, a Republican presidential candidate, told CNN this week.

Various government agencies maintain databases on suspected terrorists, each with a different function. Most of those lists were either created or vastly expanded after the Sept. 11, 2001 terrorist attacks under President George W. Bush’s administration.

The National Counterterrorism Center runs a central repository of more than 1 million people called Terrorist Identities Datamart Environment, or TIDE. The TIDE database, which includes about 25,000 Americans as of 2013, is drawn from intelligence community sources and is classified.

An unclassified subset of the TIDE database is made available to law enforcement as part of the Terrorist Screening Database. That database contains biographical and biometric information about potential terrorists and can be accessed by local, state and federal law enforcement officials who don’t have security clearances. As of 2011, that database was said to contain about 420,000 names, according to the FBI.

The Transportation Security Administration receives an even smaller list of people subject to travel restrictions drawn from the Terrorist Screening Database. In addition to the 16,000 names on the no-fly list in 2011, another 16,000 were on the selectee list. The selectee list doesn’t prevent individuals from flying but subjects them to extra scrutiny.

Critics say that banning suspected terrorists from buying guns poses the same problems as banning them from traveling: namely, the lack of transparency around the process used and concern of depriving individuals of their rights over the mere suspicion of terrorism.

“There is no constitutional bar to reasonable regulation of guns and the no-fly list could serve as a tool for it—but only with major reform,” said Hina Shamsi, an attorney with the American Civil Liberties Union’s National Security Project.

Ms. Shamsi litigated the ACLU’s ongoing challenge to the no-fly list in federal court, winning a victory for several of her clients who were denied the right to travel. Several plaintiffs in the lawsuit were removed from the no-fly list and the government has made some modifications

“These lists are compiled on the basis of mere suspicions,” said Bruce Ackerman, a constitutional law scholar and professor at Yale University. “What we need is a system in which defense lawyers who have received security clearances can effectively challenge the government’s evidence.”

Original article can be found here:  http://www.wsj.com