Earlier this month, the American Civil Liberties Union released a briefing paper summarizing what has become known in recent years about the crazy watchlists that the United States maintains.
What Standard Must Be Met for Inclusion on Government Watchlists?
We don’t know. We know only the standard for inclusion in the TSDB, and that standard is not only so confusing as to be meaningless, but also expansive enough to encompass a range of innocent and First Amendment-protected conduct. Prior to 2007, no uniform standard existed for nominations to the TSDB; each nominating agency simply followed its own standard.15 Now DHS maintains that only known or reasonably suspected terrorists may be included in the TSDB.16 The TSC defines a “reasonably suspected terrorist” as “an individual who is reasonably suspected to be, or have been, engaged in conduct constituting, in preparation for, in aid of, or related to terrorism and terrorist activities based on articulable and reasonable suspicion.”
On its face, this standard is baffling and circular: it essentially defines a suspected terrorist as a suspected terrorist. The standard is certainly not sufficient to ensure that a person is truly a threat. It lacks any requirement that an individual knowingly engage in wrongful conduct, and it permits weak speculative inferences. Indeed, the phrases “related to” and “in aid of” are broad enough to include First Amendment-protected speech and association, or conduct that is entirely unwitting. Mere proximity to a suspected terrorist should not make one a suspected terrorist, but that is what the standard allows. And it is not at all clear what separates a reasonable-suspicion-based-on-a-reasonable-suspicion from a simple hunch.
Oooh, I feel so much safer.