Scrutiny of Anti-Terrorism Watchlists Increases

Stirring up controversy and resentment, the United Nation's terrorist watchlist has led to the release of a critical report from Europe's leading human rights watchdog organization. U.S. watchlists have also caused controversy, including the massive no-fly list and the Specially Designated Nationals (SDN) list used to shut down charities. A recent hearing in the House Homeland Security Committee examined the extent to which U.S. watchlists infringe on the rights of innocent persons by maintaining inaccurate records and not addressing current security vulnerabilities.

The report from the Council of Europe, coupled with the House and Senate hearings, demonstrates the many shortcomings of relying on nontransparent watchlist methods. Both in the U.S. and in the EU, procedures for getting on or off government watchlists are often unclear. The draft report [1], published by the Council of Europe's legal committee, maintains that the methods used for sanctioning individuals and organizations do not include any "procedures for an independent review of decisions taken, and for compensation for infringements of rights." The 47-nation council said, "If one adds to this picture the practice of abductions (extraordinary renditions), of secret detention centers and the trivialization of torture, this provides a worrying, devastating message: Principles that are as fundamental as the rule of law and the protection of human rights are optional accessories applicable only in fair weather." Most of the council's criticism focuses on inefficient redress mechanisms and non-transparent designation processes.

Specific grievances include the following:

• Individuals/organizations should be adequately informed of the charges held against them.
• Individuals/organizations have the right to defend themselves against charges which restrict travel, freedom of movement, right to health, freedom of religion or access to economic resources (i.e. instances of frozen assets).
• Individuals/organizations should have the merits of their cases heard and speedily reviewed by an impartial and independent body, which has the authority to modify or annul blacklist designations.

The report calls for specific reforms, including:

• Adequate notice of charges and decisions
• A right to be heard and adequately defend oneself
• The ability to have decisions "affecting one's rights speedily reviewed by an independent impartial body" with authority to annul or modify it
• Compensation for wrongful violations of rights

The report calls for an overhaul of current international regulations on blacklisting, saying it is both regrettable and worrisome that "important and prestigious international organizations, founded on the protection of human rights, the rule of law and democracy, have chosen to forego these values."

This characterization might readily apply to U.S. watchlists. In recent months, Congress has been paying increased attention to problems within the watchlist system. The House Homeland Security Committee held a hearing [2] entitled "The Progress and Pitfalls of the Terrorist Watch List" on Nov. 8. The hearing was similar to the Senate Homeland Security and Governmental Affairs Committee hearing [3] held on Oct. 24. Opening comments from the House committee's chairman, Rep. Bennie Thompson (D-MS), expressed concerns about the quality of watchlist data and the overall growth in the number of watchlist names. He said, "We can do better — and we have to do better…"

One key difference from the Senate hearing was the testimony of Kathleen Kraninger, Director of Screening Coordination for the Department of Homeland Security (DHS). Her comments highlighted actions DHS can take to further improve watchlist matching efforts. According to Kraninger, the DHS is preparing to take over the No Fly and Selectee watchlist-matching processes for both international and domestic flights. It will use Secure Flight, a program that is supposed to significantly enhance watchlist matching capabilities in several ways. As a result, she said:

• DHS will have access to real-time watchlist information for quicker identification of potential matches prior to airport arrival.
• Quicker calibrations will allow the Secure Flight system to increase/decrease the number of potential matches depending on the level of threat assessed.
• DHS will have more time to coordinate appropriate law enforcement responses before known/suspected terrorists arrive at passenger screening checkpoints.
• Matching will be performed in one process that will be consistently applied across airlines.

While these improvements are welcomed, they may take longer than expected if critical funding shortfalls are not overcome. Kraninger said, "The lack of funding will severely delay rollout of the program and increase costs and risks."

Given the lack of transparency in watchlist designations, Kraninger said it is important for agencies to have robust information for checking against watchlists. Kraninger stated, "Different screening opportunities present different challenges." Customs and Border Protection has access to many different types of information, to identify and screen individuals entering the U.S., while domestic airline personnel currently rely most heavily on name-matching capabilities. Recognizing the limitations of using name based matches, Kraninger spoke of DHS efforts to begin using US-VISIT biometric information during screenings. According to Kraninger, in FY 2007, CBP encountered 5,953 positive watchlist matches. However, that number could increase substantially if biometrics were used.

The current number of unajudicated redress requests further highlights current inefficiencies in DHS counterterrorism efforts. Of 15,954 redress requests, approximately 7,400 have not been addressed. With nearly half of all cases being addressed, DHS is reportedly refining the concept of operations for redress requests. Other systems that might further enhance current screening efforts include the Western Hemisphere Travel Initiative (WHTI) and REAL ID. Both recommended by the 9/11 Commission, these two systems would make it much harder for known/suspected terrorists to use fraudulent credentials.

During the hearing, Kraninger also addressed key recommendations from GAO's October 2007 report [4]. In response to GAO's recommendation that the Secretary of Homeland Security develop guidelines for using watchlist records to support private sector screening processes, Kraninger said DHS is currently drafting guidelines to establish and support private sector screening. List checking by private companies, such as banks and lenders, has led to problems for individuals with names similar to people on the list. In a March report [5], the Lawyer's Committee for Civil Rights of the San Francisco Bay Area showed that many Americans are being denied jobs and various services because their names are similar to others who are designated.