This week I came across a document of serious interest to me, and my work on Targeted Killing. It is the guidance for US federal agencies involved in Counter-Terrorism for who can and cannot be placed onto terrorist watchlists. It is a 2013 document, and was released by The Intercept in 2014, I found it via Jutta Webber’s article ‘Keep adding. On kill lists, drone warfare and the politics of databases‘ (Environment and Planning D: Society adn Space, February 2016, vol. 34, no. 1 107-125), which is also very good, although makes a couple of points I’d contend with, and misconstrues ‘Organised Armed Group’ as a definitional problem, when it is a legal term. Still a good article, and worth a read.
Anyway, back to the ‘Watchlisting Guidance’, The Intercept presents this document as proof that US federal agencies can put individuals onto watchlists on little more than a whim, due to ‘Reasonable Suspicion’ being enough for nomination. I think it is actually much more regulated than that.
The document details how information and intelligence about individuals are placed on the Terrorist Screening Database (TSDB), which is maintained by the Terrorist Screening Centre (TSC), within the FBI, and on the Terrorist Identities Datamart Environment (TIDE), which is maintained by the US National Counterterrorism Centre (NCTC) (pg 5).
The TSDB is also known as the Terrorist Watchlist, and is informed both by TIDE and the TSC’s Terrorist Review and Examination Unit (TREX). It is solely concerned with holding information on known or suspected domestic terrorists with no link to international terrorism. TIDE functions as a repository of information on known and suspected terrorists and terrorist groups, pursuant to the NCTC’s responsibilities under s.1021 Intelligence Reform and Terrorism Prevention Act 2004 (pg 7). Nicely, it also uses lots of biometrics to enhance screening of individuals, as required by Homeland Security Presidential Directive 24 (pg 8).
The document also uses a composite definition of terrorism and terrorist activities, due to no single agency, or nation agreeing in international, or national spheres. Internationally, no country wants to criminalise potentially legitimate National Liberations Movements (ala Moderate Syrian Rebels), and nationally, different agencies perceive terrorism differently depending on their role. Anyway, here it is (Page 8-9):
While federal law contains numerous definitions of “terrorism”, for watchlisting purposes under this Guidance, “TERRORISM and/or TERRORIST ACTIVITIES” combine elements from various federal definitions and are considered to:
- involve violent acts or acts dangerous to human life, property, or infrastructure which may be a violation of U.S. law, or may have been, if those acts were committed in the United States; and.
- appear to be intended-
- to intimidate or coerce a civilian population;
- to influence the policy of a government by intimidation or coercion; or,
- to affect the conduct of a government by mass destruction, assassination, kidnapping, or hostage taking.
It is quite a broad definition, but I would expect that, the point of this exercise being to make sure US agencies keep tabs on all the people who could commit a terrorist act. The document is explicit that these watchlists are to inform the US in denying visas to known/suspected terrorists, and putting them on ‘No Fly’ lists (pg 42-53). However, there are some pointers that these databases may also inform other actions.
The Deputies and Principals committees are mentioned (pg 26), these are the groups that create ‘short-lists’ for targeted killing, for authorisation by President Obama. There is also mention of raids by military and intelligence personnel (pg 41), often carried out by Special Operations Forces from Joint Special Operations Command (JSOC) (for more information, the book and documentary Dirty Wars is a great place to start). However, I would expect this, why wouldn’t the targeted killing process be informed by a database of known and suspected terrorists? It would be both farcical and negligent to section off intelligence in case violent Jihadists become subject to targeted killing. Also, military raids generate a lot of intelligence when they take phones, computers, hard drives, and documents – it would also be farcical and negligent to not include this intelligence in wider terrorist intelligence databases just because it came from the military.
The main thrust of The Intercepts criticism is the criteria for putting people onto the watchlist, or the ‘Minimum Substantive Derogatory Criteria’ as the Guidance calls it. Allowing agencies to watchlist individuals based on ‘Reasonable Suspicion’, it contends is tantamount to putting names on lists based on wide and ambiguous terms. I think it is pretty clear, however (pg 33):
REASONABLE SUSPICION. To meet the REASONABLE SUSPICION standard, the NOMINATOR based on the totality of the circumstances, must rely upon articulable intelligence or information which, taken together with rational inferences from those facts, reasonable warrants a determination that an individual is known or suspected to be or has been knowingly engaged in conduct constituting, in preparation for, in aid of, or related to TERRORISM and/or TERRORIST ACTIVITIES. There must be a factual basis…Mere guesses or hunches are not sufficient…Reporting of suspicious activity alone does not meet REASONABLE SUSPICION…
Perhaps its because I’m used to reading law, but it seems quite obvious that factual proof is required by the nominating agency, yes there is leeway and wiggle room, but I’d expect that too. Well trained terrorists aren’t going to leave a concrete paper trail for law enforcement to follow, effective watchlisting would require them to look at the ‘could be’ terrorists, otherwise they might miss a potential plot.
I could go on, but I’ll leave you to look at the document yourselves. Overall, I think it does a good job of a difficult task. Would it keep people safer to have tighter definitions? Maybe, maybe not.Is it worth hovering up some innocent people to try and find the terrorist in the crowd? I don’t know. If this what is actually going on,as The Intercept suggests, I hope so.