The Secret Government Rulebook For Labeling Someone a Terrorist
firstlook.org
firstlook.org
The thing is, when they say:
> create a 'nomination', 'verification' and 'implementation' process with their “originators,” “nominators,” “aggregators,” “screeners,” and “encountering agencies.”
And we all reel in horror at how bad this is procedurally, we must remember that they are not doing this to determine terrorists. They are doing this because if they do put people on lists and need to watch them (for whatever reason), and end up being very wrong, they need to diffuse the damage to organization level (which cannot be held accountable) instead of individuals.
In other words, its not about codifying who is a suspected and actual terrorist. It's about internal damage control so that no individual can be blamed when something goes wrong. I'm not sure the US Gov is entirely at fault here, at least not in a actually-tring-to-be-sinister sense. I think that most large businesses end up with these same processes for the exact same reasons. The only difference here is the topic, which is creepy as hell. But I think its working as intended.
(Business example: General Motors deadly ignition switch recall[1]. Their processes are set up to shift blame, not to locate discrete problems that trace back to discrete decisions.)
This is why Khalid El-Masri (See qeorge's comment) can never face his accuser. He was accused by aggregate.
It's processes determination by firing squad.
EDIT, since bare sarcasm is beneath the level of discourse I try to contribute here: To the contrary, having a codified set of rules that are designed to deflect blame away from bad or negligent actors is exactly the wrong solution to this problem.
Consider the case of Rahinah Ibrahim; an FBI desk-pusher checked the wrong box on a form and it took her 12 years and millions of dollars worth of lawyer time to get that mistake, something a system like this is designed to entrench, to get that fixed.
Still I think that aside from gross incompetence or negligence, as a society we understand that people make mistakes such as prosecutorial error, and we have systems in place to deal with them (more or less).
And yes, the problem is that here, as with problems in the criminal justice system, it's not only creepy as hell, but it also undermines the optimal functioning of a system. Resources get mis-allocated, contributing members of society get impeded, justice is denied, power differentials are exacerbated, etc.
Transparency, equitability, justice those are all essential components to a great society, both in terms of functioning and in terms of ethics - and we should be doing the work to make it happen. Here's another opportunity to do so.
Great point though.
This is what you get when you have ambiguous specifications or requirements, and delegate the implementation to a committee. The authors make this point clear:
Obama hoped that his response to the “underwear bomber” would be a turning
point. In 2010, he gave increased powers and responsibilities to the
agencies that nominate individuals to the lists, placing pressure on them to
add names.
The answer: both. Every organization can fall prey to people internalizing the value of the organization's insiders over everyone else. "Us vs them" attitudes pervade society and our social fabric, and bureaucracy and poor management exacerbate the issue. For the government, that means there are a hundred thousand terrorists living among us; and for your startup, it means you might be inculcating a dangerous culture that can come back to bite you. At least the government doesn't have to worry about its revenue stream drying up from bad publicity.
Page 9 (concerning the definition of "terrorism"): >1.14.1 involve Violent acts or acts dangerous to human life, property, or infrastructure
Property? Tell me this is not a deliberately broad definition intended to be used against inconvenient persons.
Page 22: >1.51 In determining whether an individual is a KNOWN or SUSPECTED TERRORIST, NCTC will rely on the designation of "KNOWN TERRORIST" provided by the NOMINATOR as presumptively valid.
Presumptively valid. Let that sink in for a moment. It could not be put in clearer terms that a targeted person will be assumed guilty until proven innocent. This is a basic perversion, no, inversion, of due process and the justice system.
EDIT: The OCR'd version of the document and the original have significant textual differences. Updated.
Here, you omitted the phrase 'known terrorist' from the middle of the sentence you quote on page 22. This totally changes the meaning of the quoted sentence. Also, you chose not to include the following sentence which described how such a presumption could be overcome if the investigative body in question had credible information to the contrary. Finally, you overlooked the fact that 'nominators' in this context refers to other government agencies, relying on existing procedures for designation of someone as a 'known terrorist', and that said procedures form the due process in question. The point of this is to avoid bureaucratic duplication and waste. If the FBI sends the NCTC someone's bio and states them to be a known terrorist (based on facts in said bio), then it's entirely reasonable for the NCTC to take the FBI's information at face value unless it receives information to the contrary.
Such designation is presumptively valid in that situation because the FBI itself is subject to law. If different agencies of the executive branch are required to reject each others' conclusions by default and investigate every assertion de novo the outcome would be ontological paralysis. At such time as someone is detained and charged with terrorist the matter is handed over to the judicial branch, where a court serves the role of finder of fact. Essentially, you're demanding that trial precede investigation.
Ah, damn. The "text" version of the page which I tried to read does not contain that phrase at all. Bad OCR, I guess. :/ In any case, I do not see how it significantly alters my indignation at it; if some 3-letter agency decides to wink, wink nudge, nudge and label an inconvenient person as a known terrorist as per the aforementioned broad definitions of the word, that person is likely screwed.
> Also, you chose not to include the following sentence which described how such a presumption could be overcome if the investigative body in question had credible information to the contrary.
That subsequent sentence adds absolutely nothing that is contrary to what I pointed out. It only says that the investigative agency has the power to judge someone as guilty, but also to later change it's mind if it finds evidence of non-guilt. It can blacklist me. It can remove me from the blacklist if it so chooses, but I don't care about that, I do care that it can blacklist me though. Therefore I do not see how not including that sentence changes the meaning in any way, let alone 'totally'.
> Finally, you overlooked the fact that 'nominators' in this context refers to other government agencies, relying on existing procedures for designation of someone as a 'known terrorist', and that said procedures form the due process in question.
Procedures, procedures, procedures...
My purpose was to highlight that nowhere in this thing that you call "due process" is a judge or the target kept in the loop. Just the existence of a "process" does not mean that it is due process
> Such designation is presumptively valid in that situation because the FBI itself is subject to law.
You seem to be assuming that if there is a process, it is due process. If an agency is officially subject to law, it will never act contrary to law.
> Essentially, you're demanding that trial precede investigation.
Not exactly... I'm demanding that they get a warrant. Getting a warrant != having a trial.
My purpose was to highlight that nowhere in this thing that you call "due process" is a judge or the target kept in the loop. Just the existence of a "process" does not mean that it is due process
But 'due process' does not just mean 'judicial process'. It includes administrative process, which is what the executive branch does. Indeed, it's not uncommon for courts to dismiss suits on the basis that a plaintiff has failed to exhaust his or her administrative remedies, ie has not run into a brick wall in dealing with the bureaucracy, resulting in a legal controversy.
Regarding the warrant vs. trial - reasonable enough, but the fact remains that warrants are only issued subject to probable cause,and probable cause can only be established by investigation. It seems to me that you're demanding that government agencies get a warrant in order to open an investigation at all.
Well, of course. If we instead assume that agencies will simply ignore the law, then of course any process is meaningless. But if that is your assumption, we might as well give up now. Of course bad things could happen if agencies start breaking the law, but if there is no evidence of systemic law-breaking, it's not really useful to bring up. It should be pretty evident that even the NSA attempts to ensure that everything it does is legal, and in fact goes out of its way to do things in a convoluted and obfuscated fashion to ensure the legality of some of its actions.
The government is saying that there are ~1,500 known or suspected terrorists per million population. Or in other words, the city of San Francisco is home to ~1,250 known or suspected terrorists. or to put it another way. That there are 1 known or suspected terrorists every 3 city blocks in San Francisco 468749/313.9e6837442/(46.87/(636.5581/52802))
An interesting question is whether TSDB and TIDE can even actually track the majority of militants worldwide -- for example, your average ISIS fighter or Donetsk militiaman, as opposed to terrorists seeking to carry out attacks in non-combat areas. The idea that there are 875K al-Qa'ida-style terrorists working worldwide wouldn't pass the laugh test with most analysts. Consider that ISIS, which is either a very large terrorist group or a very small conventional army, has a personnel list somewhere between 10K and 20K, and the Pakistani Taliban is thought to have between 5K-10K fighters. The size of the TSDB, even if it were a strict superset of all actively anti-American terrorists and militants in the world, is likely an order of magnitude too large.
The statistic in question originates on page 11 of this document, a response to a plaintiff's interrogatory in a civil suit: https://www.documentcloud.org/documents/1232171-91-3.html
If they are terrorists (criminals) and the government is not prosecuting them, the government is breaking the law.
If they are innocent of wrongdoing (not terrorists) and the government is depriving them of rights afforded to others, the government is breaking the law.
So the real terrorists don't end up on the list.
Completely untrue. The government has the option, not the obligation, to prosecute criminals.
Also "being a terrorist" is NOT a boolean flag that some people possess and others do not. Some people who SAY they are terrorists are not. Most people who commit terrorist acts say that they are not terrorists. The government does not "know" which ones are terrorists and which are not. The definition of terrorism is very, very murky: we have declared that teaching conflict resolution is "terrorism" (under some circumstances) and that bombing innocents is not (under other circumstances).
People don't want to believe it, they want to think their government is only motivated to help them. But the reality is that we absolutely must compare this situation to the one in East Germany with the Stasi.
- Martin Niemöller
I think that Nazis are a great study and we should compare as many things as possible to them, as a cautionary tale.
I understand that "Nazi!" gets thrown around heedlessly, but I'm suspicious of any retorical device whose job is to tell you when to stop thinking.
Or they're just engaging in paranoid, thoughtless hyperbole. Either way, it isn't helpful.
And when the government doesn't publish how people get on the list, then anyone can be put on it with no legal justification.
That part bothers me the most. By telling agencies to add names to the list, you don't automatically get more bad guys, you're just going to get more people on the list. A fair question would be "how much do we need to expand our scope to where we would have listed a certain person known to be a bad guy that slipped through?" And of course one data point isn't really terribly relevant, but the answer to the question may be enlightening - or not.
>...after a Nigerian terrorist was able to board a passenger flight to Detroit and nearly detonated a bomb sewn into his underwear despite his name having been placed on the TIDE list...
That actually makes great sense as identity spoofs, or at least that's what I read in Kevin Mitnick's Ghost in the Wires, are most easily done under the name of deceased infants near your own year of birth.
http://www.nbcnews.com/id/10725741/ns/us_news-security/t/-ye...
This is why they create a 'nomination', 'verification' and 'implementation' process with their “originators,” “nominators,” “aggregators,” “screeners,” and “encountering agencies.”
But the problem comes down to the actual facts. This document does a terrible job of separating a process design - First a candidate gets originated by an originator, who passes that said candidate on to a nominator, etc - from the basic factual requirements needed to become listed as a suspected (or actual) terrorist. (Though the latter would seem easier to determine.)
What is really needed is a clear set of factually determined checks to show that someone is indeed a suspected terrorist. Not a process design that creates a structure towards watch list inclusion.
In design this is often a problem. It's a very common mistake. Teams, Companies, Professionals design a process, but not the necessary, required steps - and everything just gets lost in that process, especially when everything takes place according to the plan.
Here's what the watch list needs. A list that triggers inclusion.
If a appears to have done x, y or z, a get's "originated." If x, y, and z are verified, a gets nominated. At this point counter rationales for x, y and z must be presented to excuse the suggestion of terrorism when there is none. Etc.
What is important are the verifiable X, Y and Z actions. That's what a document of this type should present.
Now I know that the response is that if people are told how they get onto a watchlist, they will try to avoid those tasks while maintaining their terrorist agenda, thereby avoiding being categorized as a suspect.
But isn't that the point, don't we want people to not engage in pre-terrorist activity, like going to a training camp in Afghanistan, or sending money to organizations who have actively taken responsibility for civilian bombings. Isn't that the point?
Getting people to be classified as suspected terrorists is not what a watchlist should be about. A watchlist should be about commonly agreed upon actions that as a society we do not support, and we can change our minds about what we do and do not support over time.
Then the watchlist can be public, those on the watchlist can be public, their reason for being on the watchlist can be public and we can decide - together- who should and should not be on a watchlist.
We already do it with criminals. Why is this process any different?
Criminals can be just as deadly and corrupting to our society, but yet we've figured out a way (to some degree) to deal with them. We should be able to do the same with Terrorists.
A new process is possible, one that will in fact make us, and everyone safer. This method is not that process. Or at least that is my opinion.
There's also extensive guidance over who should not be included and when people should be removed from such lists. I can't help feeling tat most of the commenters here are stating their assumptions about the document's content without giving it even a cursory reading.
Then the watchlist can be public, those on the watchlist can be public, their reason for being on the watchlist can be public and we can decide - together- who should and should not be on a watchlist. We already do it with criminals. Why is this process any different?
We don't publish lists of suspected criminals. For many offenses requiring procedural steps prior to arrest and charge (eg presentment to a grand jury which returns an indictment), the process is not public, mainly to preserve individuals' rights.
The idea that you can be added to a watchlist, but you can know why, or by whom, or how to get yourself removed, because you are preserving an individuals right seems counter intuitive to what those rights should be.
Unless, I'm misunderstanding you.
There is also a huge difference between being a suspected criminal and being a suspected terrorists, by how those definitions are actively managed. Suspected criminals are not barred from boarding planes, nor are they barred from banking, or housing, or otherwise. They are simply surveilled in a different capacity, until they are no longer suspected, or a case is developed to charge them. The process does have public components to preserve the rights of the individual.
And as to my cursory reading - you are correct. I didn't see those standards as detailed. I will review them. But my point remains, why not publicize the specifics of those placed on the watchlist, just like we publicize the charges against those in criminal and civil proceedings. How is this different?
This conversation will go better if you don't start out with straw man arguments; I said no such thing.
The idea that you can be added to a watchlist, but you can know why, or by whom, or how to get yourself removed, because you are preserving an individuals right seems counter intuitive to what those rights should be.
...but not if you don't take time to actually read the document we're talking about, which includes sections on challenging inclusion and removal from lists. Absent a satisfactory administrative outcome, petitioners still have resort to the courts. This is consistent with the Constitutional design.
"The No Fly List, once distributed, clearly infringes upon a citizen's right to travel; and the Court cannot conclude based on the present record that there are no means less restrictive than an unqualified flight ban to adequately assure flight security, such as comprehensive preflight screening and searches. Second, the current record is inadequate to explain why judicial involvement before a person is placed on the No Fly List is either unnecessary or impractical, other than perhaps within the context of an emergency based on a specific, imminent threat that requires immediate action. Nor does the record conclusively establish that there cannot be any opportunity, either before or after an American citizen is placed on the No Fly List, to know of or challenge any of the information used to list him, even where such information could be summarized in a way that does not compromise sources or methods." [1]
However, in a criminal case, the accused has a sixth amendment right to know what they are charged with and to be confronted by the witnesses against them.
I don't see why this shouldn't be the case here.
The other posters within random comments are also conflating the watchlist with the no-fly list. I don't need to go into details about the differences, because their names say it all.
(Source: I built one of those data interchange legs, and worked a lot with the TSC)
Not really. pp. 47-49 contain examples, and prior to that, there is no specific behavior for "Reasonable Suspicion", which is probably the catchall for putting regular people on the watch list. The "Known Terrorist" and "Suspected Terrorist" sections contains specifics, but you don't have to be either of those to be put on the TSDB. You do have to have "Particularized Derogatory Information" which is specific information relating you to known terrorists or suspected terrorists. However this requirement is not expanded upon (that I can see).
The section that talks about how people should be removed from the list is short (less than a page), and basically says "we should look into it if someone complains". There is no mention of court procedures, there is a single point of contact (the DHS TRIP), and there are procedures that seem to basically amount to "look again". There is no requirement for disclosure of what put you on the list, and thus no means to effectively fight it.
I realize why you are complaining about people not doing a "cursory reading", but the fact is, a cursory reading can support as many false statements as just reading the article. It also gives a false sense of security in your beliefs. I can't be 100% sure of my statements above because I haven't read it fully, but I'm more sure of them than of your statements.
Kind of makes you wonder what value the The Intercept is adding, doesn't it?
The section that talks about how people should be removed from the list is short (less than a page), and basically says "we should look into it if someone complains". There is no mention of court procedures [...]
That's because this is administrative guidance. The executive branch isn't part of the judicial branch. Agencies don't make rules about court procedure, the judiciary does. You're conflating two completely separate branches of government.
--
Let me give you a super-quick civics lesson on US government, just so we're on the same page.
The Legislative branch consists of the House & Senate, aka Congress. The main thing it does is produce Statutory Law.
The Executive branch is headed by the President and includes all the various agencies of government. Agencies which are tasked by Congress with carrying out various tasks are required to promulgate rules and establish internal procedures (such as guidance in the implementation of the rules) for their own governance. These rules and procedures make up Administrative Law.
The Judicial branch resolves controversies between other branches of government, between the states and the federal government, and so on. Court decisions can cite statutory law, administrative law (if the case involves the operations of a government agency), common law (loosely, a set of legal traditions), and precedent established by higher courts. New precedents are sometimes referred to as judicial law.
--
Now, statutory law might define which matters fall within the purview of the courts, and there's a great deal of judicial law addressing how legal disputes should proceed through the courts, but I wouldn't expect to find such things discussed in an agency guidance document. Obviously I'm only describing the very tip of the legal iceberg here, but there seem to be some very basic misconceptions in this thread about how the government functions.
Because you don't have to be a Suspected Terrorist to be put in the TSDB. Which means that there are a whole host of things that aren't on those lists that can land you in the TSDB.
>You're conflating two completely separate branches of government.
No, I'm really not. "court" is not unique to the judicial branch, for example, courts-marshal are conducted within the military and not under the judicial branch.
>That's because this is administrative guidance.
Yes, which means that there should be better policies in place to keep this out of the judicial courts.
>You're conflating two completely separate branches of government. No, I'm really not. "court" is not unique to the judicial branch, for example, courts-marshal are conducted within the military and not under the judicial branch.
Well, that's bullshit. Sometimes you just have to own your mistakes, my friend.
That's not going to happen. Should someone be wrongly excluded from the list (they turn out to indeed be an evil terrorist), then the bureaucrat who excluded them will lose their job (lots of yelling, angry meetings, uncomfortable situations, guilt, etc.) They don't want to lose their job, so no one gets excluded.
People don't care what you do so long as it doesn't harm them. Sentiment is changing towards that. It's reflected in the data. Expenditure will just be greater with any the counter.
I would argue that criminals are way far and away more deadly and corrupting to society (though terrorist is just a particular form of criminality, so all criminals except terrorists).
A simplistic, but telling, example of this how many people in the US were killed by terrorists last year compared to how many were killed by criminals.
Instilling a national fear of terrorists does not reduce the amount of terrorism. It does however justify vast expenditures of manpower and resources. Further by inculcating this fear, politicians and bureaucrats now need to "cover their asses" just in case something bad happens, which further feeds the need for manpower and resources.
"...some activities conducted by U.S Persons or activities taking place inside the United States, maybe an exercise of rights guaranteed by the First Amendment"
So you will be put on a punitive list even after the govt. itself clearly recognizes that you are only exercising your first amendment rights.
There is clearly something very wrong here...
http://www.treasury.gov/ofac/downloads/sdnlist.txt
While reading,... [FTO] = Foreign Terrorist Organizations Sanctions Regulations, 31 C.F.R. part 597 --- [SDT] = Terrorism Sanctions Regulations, 31 C.F.R. part 595 --- [SDGT] = Global Terrorism Sanctions Regulations, 31 C.F.R. part 594 (full list of tags here http://www.treasury.gov/resource-center/sanctions/SDN-List/P...)
Because insurance companies can't detain you.
By that logic our founding fathers are one of the most dangerous and evil terrorists. Acts that are dangerous to property? [check]. Trying to influence government policy [check]. They would be sent to Gitmo and watertortured 3 times per day.
In fairness, to England they kind of were. They were literally revolutionaries.
Thankfully, victors get to write history.
How to get on the government watchlist? How to get followed on Twitter by @the_intercept?
there was a story about the latter posted on Hacker news earlier today https://news.ycombinator.com/item?id=8075384 )
EVERYONE'S A TERRORIST.
Once you take everything from a man, that man is no longer in your power...
Nope, once we're all designated terrorists then prosecution becomes completely arbitrary and can be carried out with impunity and complete disregard for all rights "bcuz terrorist!".