The government's explanations on Terrorist Watch List don't add up

On July 14, 2008 the ACLU marked the addition of the millionth record to the nation's terrorist watch list. Although this milestone was simply an extrapolation of numbers in a government report (see www.aclu.org/watchlist for details), the government responded with an elaborate explanation designed to cloud the our understanding of the real size of the list and to minimize the very real problems that countless people face every day from this hopelessly bloated list.

In response to the ACLU's announcement pointing out the milestone, Leonard Boyle, director of the Terrorist Screening Center, published a statement in the Washington Post defending the list. However, his statements contain fuzzy math about an even fuzzier list and do not withstand close scrutiny.

Claim: “'Records' are not the same as ‘individuals'.... The [TSC] creates a separate record for each alias, fake date of birth, fraudulent driver's license and name variation associated with an individual.... There are slightly more than 1 million records on the watch list, which correspond to approximately 400,000 individuals”

The government admits that the ACLU's central claim is correct – that the number of separately described individuals in the database has reached 1 million – while simultaneously trying to minimize the import of that fact by diverting attention to another number. He protests that the one million entries on the list were only meant to cover 400,000 separate individuals – it's just that the terrorists have multiple identities, so it only looks like there are a million people on the list.

But the government's intent is irrelevant. There are one million or more names on the list. By entering “Edward Kennedy” and “E. Kennedy” on the list, the government may only have intended to cover one person, but it created two separate names on the list with far-reaching implications for those who match one name or the other.

The TSC's intentions are not what is significant, it is how many people are affected by this list. Boyle states that “a single individual can generate hundreds of records” in the database.” But each of those records has the potential to ensnare thousands or even tens of thousands of innocent people with the same or a similar name. Just think about how many people are caught up in the web of suspicion when common Anglo-American names such as Jim Robinson, Gary Smith, and Robert Johnson are – as they have been—placed on the list.

Even if you accept the alchemy that turns one million separately described people into 400,000 “names,” the revised number is hardly comforting. Does anyone think that there are 400,000 terrorists out there plotting to attack us?

A list that targets 400,000 individuals is a list that has spun out of control. When Americans picture a “terrorist watch list,” they think of a list that contains associates of Osama Bin Laden and other highly dangerous terrorists. They do not think of a bureaucratic dragnet with hundreds of thousands of names. Whether we focus on the relevant 1 million number, the tens of millions of Americans with the same names as those on the list, or even the less relevant, smaller number that the government intends to target, the ACLU's underlying criticisms of this list remain valid:

•  It is out of control

•  Its size is far, far out of proportion to any reasonable list of true terrorists

•  It is a waste of security resources that does more harm than good

•  It needs to be reined in through the imposition of due process and other checks and balances.

Claim: “Of the individuals on the terrorist watch list, approximately 95 percent are not American citizens or legal residents”

Since the list is secret, there is no way to verify that claim. But even if we accept the claim as true, the reality is that the list impacts millions of innocent Americans with the same or similar names as the “foreign terrorists” the government intends to cover.

It may well be true that former assistant attorney general Jim Robinson is caught up by this list because he shares the name of a suspected IRA terrorist, for example. That IRA suspect is probably not a U.S. citizen – but that's cold comfort to Robinson when he tries to fly. For those whose names resemble some faraway terror suspect and find themselves hassled or worse, the fact that the suspect is not an American is irrelevant.

Furthermore, even using the government's reported numbers of 400,000 individuals represented on the list, 95% of whom are not U.S. persons, that would still mean that there are 20,000 U.S. citizens and permanent residents who have been listed by their own government on its “Terrorist Watch List.” That's 20,000 people who may encounter problems not because they may match one or more of the numerous aliases of some faraway terrorist, but because their government actually considers them a potential terrorist. And they receive this designation with no notice, no right to learn what information or accusation led to their designation, no right to dispute that information or that accuser, and no right even to receive an official confirmation that they are on the list.

And in the end, we must ask ourselves, “Can there really be 20,000 American terrorists burrowing in our midst poised to strike America”?

Claim: The list “helps fight terrorism”

It is far from clear that any halfway competent terrorist would find the watch list system much of an obstacle to an attack, given the ease with which one will always be able to obtain and use fake identities. Unless this nation institutes some kind of cradle-to-grave, biometric, ironclad identity and tracking system, identity-based security systems such as watch lists will never be very effective. And Americans have always made clear that they do not want such a system imposed on them.

Moreover – incredibly – names of some of the worst terrorists are not even on the list! At least as the list is provided to “downstream” or frontline screeners. That is because the government is afraid of revealing that those terrorists are even on the list. It has long been known that the government was withholding certain names from the airlines, but the Justice Department's inspector general seems to indicate that such withholding has also taken place with respect to other screeners, such as customs officials, State Department consular officers, local police, and others.

Claim: The list “enhances information-sharing”

Given the record of this list, serious questions arise over the quality of the information that is being shared through it, and it recalls the computer expression “Garbage In, Garbage Out.” In any case, there is certainly no problem with security agencies becoming better about sharing genuine, legitimate evidence of terrorist activities – but it is hard to believe that the government possesses such information on 400,000 individuals, including 20,000 U.S. persons, especially enough information to designate them as potential terrorist suspects. And, even if a database such as this is, in fact, a useful medium for the trading of vague and sketchy information among arms of the security bureaucracy (and not a diversionary waste of time as it may also be), that in no way justifies its active use against live subjects for airline flights, at the border, for the screening of financial transactions, or anywhere else.

Claim: the list “is constantly checked to reduce misidentifications” and the TSC “runs quality-assurance checks on watch-list data every day.”

These efforts may loom large for those on the inside but for Jim Robinson and millions like him, they are clearly not effective. In fact, the listing of a terrorist named “Jim Robinson” may not be a “quality-assurance” problem at all; it may be that there is a genuine terrorist with that name and that the evidence against him is very strong. But Jim Robinson the former head of the Criminal Division of the Justic Department continues to be affected by this list. The fact is, the government often simply does not have a mechanism by which to distinguish individuals with the same name (and experts say it is surprising how often two people with the same name will also posess other information in common, such as date of birth).

In fact, self-governed administrative or bureaucratic quality-assurance efforts will never be sufficient; Americans need a right to challenge their inclusion on such a list, and Congress needs to impose tight controls on how it is run.

Claim: The list's “size corresponds to the threat” and is made up of individuals “drawn from across the globe [who] represent a tiny fraction of the more than 6.6 billion people on our planet.”

Aside from recalling an Onion story on Iraq (in which officials tout the war's success because “the vast majority of Iraqis are still alive – as many as 99 percent”) this claim ignores the fact that

•  the effectiveness of a terrorist watch list is in proportion to how small it is, not how large

•  the “tiny fraction” of the earth's inhabitants's whose names, aliases, etc. are listed continues to unfairly interfere with the travel of large numbers of Americans and others

•  there exists no practical and effective mechanism by which terrorist-suspect names, aliases, etc. that are on the watch list can be distinguished from others with similar names

The bottom line

Boyle makes a valiant effort to minimize the outlandish bloat of our terrorist watch list. But what he doesn't explain is why someone like Jim Robinson, the former head of the Criminal Division of the Justice Department, and millions of other Americans like him, cannot get off these lists. Does it do Robinson any good if he's stopped because he matches some suspected IRA terrorist's alias #7 rather than his true name? Does it do him any good if the suspect is a foreigner rather than a U.S. person? A million records are a million chances for average Americans to lose.