Asian Law Caucus Details Effects on Asians by Homeland Security Watchlist

ALC statement given 11/8/07
posted 11/13/07

I. U.S. citizens and residents who are screened each time they return to the United States from travels abroad experience not only lengthy detentions and delays, but also undergo questioning and searches that chill basic First Amendment rights. It is by now widely known that many Americans are repeatedly inconvenienced by mistaken association with the terrorist watch list. What is less commonly known is that many of those caught up by watch list deficiencies are essentially compelled to surrender their First Amendment rights at U.S. borders. Interrogations and searches by U.S. Customs and Border Protection, often triggered by the watch list, have a chilling effect on free speech, freedom of religion, and freedom of association.

Among the complaints received by the Asian Law Caucus from Northern California residents, U.S. citizens and legal permanent residents reported the following experiences:

• A U.S. citizen and ethnic studies college professor who writes for national magazines was grilled about his travels and the notes he had taken while reporting on political events abroad. Agents removed his laptop computer to another room and told him they were downloading all the files from his computer. When he protested his treatment, he was told, "This is the border, and you have no rights.
• In the last two years, a religious leader who is a U.S. citizen has been pulled aside seven times for questioning and extensive luggage searches when returning home to the United States. On one occasion, when returning from a U.S.-government sponsored conference abroad, agents examined and may have photocopied business cards he had collected from other conference participants. Repeated complaints to federal agencies have resulted in no improvement in his situation.
• A U.S. citizen who works for a high-tech company is repeatedly flagged for scrutiny at U.S. ports of entry, and told it is because he is "in the system." Customs agents have grilled him about his business travels, family members, and his views on current affairs in Syria and Israel. A Customs and Border Protection agent opened his company laptop computer and spent half an hour viewing websites he had visited, in addition to examining his cell phone directory, every item in his wallet, and other personal materials.
• A legal permanent resident and database developer reported being questioned for almost 20 hours after three international trips, despite hearing an agent explain that he was not an actual match. He was asked about his religion, whether he hated the U.S. government, and even told that he should "pray more." Customs agents inspected his company laptop computer, examined all the books in his luggage, and interfered when he tried to take notes on the screening. Despite sending complaint letters to multiple federal agencies, he has been unable to clear his name.

These stories from Northern California are echoed in complaints received by civil rights organizations around the country, while some U.S. citizens report even worse stories of being handcuffed, held at gunpoint, or detained as many as 14 times due to a purported watch list match.

As members of Congress evaluate the management and effectiveness of watch list screening, they must consider the continuing impact of watch list failures on the dignity and freedom of Americans and immigrants nationwide.

II. Existing "redress" mechanisms have not resolved the complaints of individuals repeatedly screened at the nation's borders. While the Department of Homeland Security and other government agencies have created complaint mechanisms for individuals who believe they are affected by government watch lists, U.S. citizens and residents who have used these processes often see no improvement in their experience. Many Northern California residents who contacted the Asian Law Caucus had already filed complaints through the DHS "Traveler Redress Inquiry Program" (TRIP) or earlier versions of the redress program, or with U.S. Customs and Border Protection, but to no avail. One individual even reported retaliation for having complained to his congressional representative about repeated screenings; when he showed a Customs agent a supportive letter he had obtained from his representative, the questioning actually intensified. Others who contacted the Asian Law Caucus complained of excessive delays in getting any response from government agencies. Overall, individuals subject to repeated screenings continue to express a sense of powerlessness in resolving their predicament.

The recent GAO and Inspector General reports confirm that significant deficiencies exist in the redress procedures. The Inspector General found that, due in part to the absence of target time frames for completing redress inquiries, there were "excessive delays" in resolving complaints. In addition, the same report noted that even where the Terrorist Screening Center revised its watch list in response to complaints, agencies relying on that data, including U.S. Customs and Border Protection, failed to update their records in a timely fashion - perpetuating problems for travelers repeatedly screened at U.S. ports of entry. Finally, the Inspector General faulted the Terrorist Screening Center for lacking policies and procedures to proactively reduce watch list misidentifications, especially in light of the fact that almost half of the watch list encounters referred to the Center concerned individuals who were not on the list but merely shared a name that led to their misidentification.

III. The government's process for adding individuals, including U.S. citizens, to the watch list in the first instance lacks adequate protections for due process and civil liberties. Community members who have called the Asian Law Caucus after repeated screenings uniformly express a deep sense of stigma, anxiety, shame, and bewilderment at the fact that they may be included on a government watch list - and frustration that they cannot know, let alone challenge, the basis for their possible inclusion. Apart from resolving complaints from individuals who are repeatedly screened, the government must uphold basic standards of fairness and due process before watch listing individuals in the first place. Unfortunately, the recent GAO and Inspector General reports inspire little confidence in this regard.

First, the Inspector General's audit of Terrorist Screening Center watch list data found enduring problems with the accuracy and quality of watch list records. For instance, the audit concluded that 38% of watch list records that had already been reviewed through the Center's routine "quality assurance" program contained errors or inconsistencies. Furthermore, the Inspector General noted that nearly half of the records reviewed after individuals complained required changes or even removals from the list, suggesting "deficiencies" in the process for adding records to the watch list in the first place.

Second, the GAO's description of the process by which the Federal Bureau of Investigation (FBI) submits new names to the TSC watch list indicates little independent review, suggesting that innocent, law-abiding U.S. citizens and immigrants may be caught up in the watch list without good reason. The FBI "nominates" individuals to the list, including persons who are being "preliminarily investigated" to determine whether they have links to terrorism. Although the Terrorist Screening Center now reviews the underlying information upon which nominations are submitted, it appears that the Center largely rubber-stamps the FBI's recommendations: the GAO reports that only 1% of FBI submissions are actually rejected. Unfortunately, the GAO did not conduct its own review of FBI files to evaluate the factual basis for watch list inclusions. Nor did the GAO report explain whether the FBI has actually closed cases and removed people from the list where preliminary investigations have established no terrorist links.

Government watch lists compiled by executive agencies in secrecy and without judicial determinations of guilt raise inherent concerns about the procedural rights of those who are affected. Where, as here, the process for including individuals in a terrorist watch list provides even limited internal oversight, the potential for innocent individuals to be unfairly targeted and deprived of their rights is even greater.

IV. Existing problems with the terrorist watch list suggest that expanded use of the list in the private sector would present an even greater threat to civil liberties. In light of existing grave concerns with the quality and accuracy of watch list data and the impact on ordinary Americans, the GAO's recommendation to expand the use of the list by private companies further endangers civil liberties. Although the need to protect critical infrastructure maintained by private companies may warrant additional security measures, past experiences of delegating national security screening to private entities have revealed widespread inconsistencies in screening, limited accountability for abuses, and unfair denials of opportunity to individuals wrongfully linked to watch lists. Moreover, the recommendation to consider watch list screening by employers in the private sector raises particularly serious concerns: in the employment context, the potential for individuals to lose significant material opportunities as a result of flawed screening is especially high, while the necessity for urgent security determinations is generally low.

Rather than seeking ways to expand use of the TSC watch list, Congress should curb the spiraling growth of the list, provide meaningful relief to those repeatedly flagged as a result of the list, and ensure that individuals are not placed on the list in violation of due process and basic fairness. At the same time, Congress should rigorously investigate how federal agencies such as U.S. Customs and Border Protection treat individuals - including U.S. citizens and residents - whose names trigger an apparent watch list match. The Asian Law Caucus would be pleased to work with the members of the U.S. House of Representatives Committee on Homeland Security to further address this critical issue.

for statement with footnotes