The Obama administration has added more than 1.5 million names to the US terrorist watch list over the past five years, according to information released by the government in a civil lawsuit in Virginia.
The numbers divulged by the government in a suit filed by a northern Virginia man challenging the constitutionality of the government’s no-fly list show that the submission of names to the Terrorist Screening Database, from which the no-fly list is compiled, has soared under Obama. In fiscal 2013, the most recent year provided, so-called “nominations” to the list jumped to 468,749 from 227,932 in fiscal 2009. The numbers for the intervening years include 250,847 in fiscal 2010 and 336,712 in fiscal 2012.
The government says that some 99 percent of names submitted by various intelligence and police agencies are accepted. The database contains information on individuals inside and outside the United States, and is fed information by the Terrorist Identities Datamart Environment (TIDE), which compiles information on individuals outside of the United States, and the FBI, which provides information on citizens and residents of the US.
The list was sharply expanded following the abortive attempt by Nigerian-born Umar Farouk Abdulmutallab to blow up a commercial airplane over Detroit on Christmas Day 2009.
Gulet Mohamed, 21, of Alexandria, Virginia, filed the suit after he was stranded in Kuwait in 2011 as he sought to return to the US after a trip to Yemen and his native Somalia. He has never been charged with any terror-related offense and claims his inclusion on the list is a mistake.
People are placed on the terrorist watch list and the no-fly list without being told. They never receive an explanation for their inclusion, and have no real avenue for getting their names removed.
The Associated Press reports that US counterterrorism officials told it there were 700,000 names on the watch list as of August 2013. These officials claim that names are routinely removed, but the government refuses to reveal its criteria for adding or removing names from the database.
The Federal Bureau of Investigation (FBI) acknowledges that approximately 20,000 individuals are on the no-fly list, including 500 US citizens.
At a hearing before US District Judge Anthony Trenga in Alexandria on Friday, government lawyers urged that Gulet Mohamed’s case be dismissed, claiming that state secrets would otherwise be revealed. The judge did not issue a ruling, but expressed skepticism toward the government’s motion.
The government lawyer, Amy Powell, told the judge the government did not seek to invoke its state secrets privilege lightly. In fact, the Obama administration routinely invokes the claim of state secrets to shut down legal challenges to unconstitutional and illegal practices such as rendition, torture, indefinite detention and domestic spying.
Judge Trenga, who earlier this year rejected a previous attempt by the government to get the case dismissed, cited a secret filing he recently received on the government’s state secrets claim and said, “I didn’t notice any real restraint” in the government’s invocation of state secrets. “They were the kinds of things that would not jump out at you as state secrets,” he added.
The case was filed by the Council on American-Islamic Relations (CAIR) on behalf of Mohamed. Gadeir Abbas, the CAIR lawyer representing Mohamed, said the numbers of names being added to the watch list show that the government is failing to abide by the standards for inclusion, which require “a reasonable suspicion to believe that a person is a known or suspected terrorist.” (It should be noted that the standards themselves—far weaker than “probable cause”—are so broad and vague as to give the government virtually unlimited leeway, in violation of civil liberties guarantees laid down in the US Constitution.)
Following the hearing, Abbas said, “There aren’t one million people who are known or suspected terrorists. This suggests the standard the government is applying is wildly loose.”
The Alexandria case follows a ruling issued last month by Federal District Judge Anna Brown in Oregon that the procedures for adding and removing individuals from the no-fly list are unconstitutional. The plaintiffs in that case, Latif, et. al. v. Holder et. al., are 13 American citizens who have been prevented from flying to or from the United States.
Steven Washburn, a US Air Force veteran who worked as a security expert in Saudi Arabia, is one of the plaintiffs in the Latif case. Washburn learned he had been placed on the no-fly list when he attempted to fly from Dublin, Ireland, to New Mexico in 2010. He was forced to fly to Brazil from Germany and make his way from there to the US-Mexico border. At the border, he was detained and questioned for several hours by US border agents.
Judge Brown ruled that the federal government’s failure to notify individuals of their inclusion on the no-fly list violates their Fifth Amendment right to due process as well as instructions from Congress to allow individuals to appeal their inclusion on the list. The Obama administration has not yet announced whether it intends to appeal Judge Brown’s ruling.
In another notorious incident, Rahinah Ibrahim, a Stanford University Ph.D. student, was blocked from boarding a flight from San Francisco, California to her home country of Malaysia in 2005. She was eventually allowed to fly back to Malaysia, but was barred from ever returning to the US. Ibrahim brought suit against the Department of Homeland Security, and a Northern California federal district judge ruled in January in her favor, ordering the government to explain why she is still included on the no-fly list.
The vast and ever-expanding Terrorist Screening Database and the secrecy surrounding it recall previous surveillance lists compiled by the US government in the name of national security. Among these are the Biddle List, which was drawn up by US Attorney General Francis Biddle in 1941 to track communist organizations and guide the purge of left-wing individuals from the US government, and the FBI’s Administrative Index, compiled in the 1960s and 1970s and including over 100,000 individuals selected to be rounded up and incarcerated in the event of a national emergency.