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By Mary O’HaraMarch 29, 2014 | 6:00 am
The Department of Justice released an audit of the FBI’s Terrorist Watchlist protocol on Tuesday. This claimed that while the agency has improved its speed when it comes to adding — and removing — names to the Terrorist Screening Database (TSDB), it still isn’t adding them fast enough.
The heavily redacted report makes clear that individuals who are not being officially investigated by the FBI can be, and often are, added to terrorist lists. What the audit doesn’t make clear is why. And that’s causing a growing unease among civil liberties groups, lawyers, and activists.
A week earlier, the American Civil Liberties Union (ACLU) released a paper claiming that the TSDB grew from about 158,000 listings in 2004 to over 1.1 million in 2009. That was before the “underwear bomber,” a 2009 incident that greatly increased monitoring.
The “no-fly list” more than doubled in one year after that failed bombing attempt. But that is just one of eleven lists that include the Consular Lookout and Support System, the Interpol list, and the Violent Gang and Terrorist Organization File (VGTOF).
“There’s no due process for the watchlists,” Lauren Regan, executive director of Oregon’s Civil Liberties Defense Center, told VICE News. “The information about who’s on them isn’t available and there’s no process for countering or getting yourself off them.”
Regan says her law office receives a lot of calls from individuals that are surprised to discover themselves listed. “Like a woman who calls sobbing because she tried to fly home for her child’s wedding and was stopped at the airport.”
The ACLU report is packed with stories of everyday people being mistakenly, or mysteriously, placed on no-fly lists that led to detainment, incarceration, and interrogations, including a group of US military vets that ended up suing the government.
The audit also does not make clear what distinction, if any, is made between “gang” and “terrorist” activity, and how those two definitions intersect on the TSDB.
'The reasonable suspicion standard is below the probable cause standard. It’s one step above a hunch.'
Regan has noticed that low-level activists in environmental protest are now being listed under an "Eco Warrior" gang designation.
Kyle Odness, a 24-year-old environmental activist from Oklahoma, was arrested last June during a demonstration against the Keystone XL pipeline. All charges were dropped against him, but this January Odness noticed strange things happening.
“I was on a camping trip in Texas. On our way out, we had to drive through a border patrol checkpoint. They ran our IDs, then came back and asked if any of us was a known gang member,” Odness told VICE News. “A friend of mine had already been told twice that she was flagged as part of a gang called Eco Warriors, so I asked if it was Eco Warriors and he said ‘something like that.’”
A month later it happened again, this time in Florida. “The sheriff’s office ran our ID’s and told me, ‘so you’re a gang member?’ I asked again if it said Eco Warriors, and he said ‘yeah, it’s some gang I’ve never heard of.’”
VICE News contacted the FBI about the so-called Eco Warrior gang, but was told that the bureau would not release information about specific gangs.
Ryan Shapiro, an MIT researcher described by the DOJ as the “most prolific” Freedom of Information Act requester, told VICE News that among the 40,000 pages he’s managed to get from the FBI, he’s never seen “Eco Warriors” listed as a gang.
“There are a number of official monikers used as subject headers like eco-extremism, animal rights, and animal extremism,” Shapiro said, “It’s not a gang designation, it’s basically a sub-header of domestic terrorism.”
Yet Shapiro added: “At the local level there’s a lot of weird stuff that happens in terms of gang information.” He recalled the 2009 indictment of animal rights activist Kevin Olliff, in which the State of California claimed that the Animal Liberation Front was a “gang.” Convicting Olliff under gang charges would have increased his sentence from two years to more than 20 years. At a 2010 pre-trial hearing, a judge ruled that ALF did not qualify as a gang.
According to law professor Jeffrey Kahn, author of the book Mrs. Shipley’s Ghost: The Right to Travel and Terrorist Watchlists, federal watchlists can trickle down to local law enforcement. Kahn believes that these authorities then don’t always comply with the directive not to share them. “So information leaks out of the system,” he said.
Kahn explained to VICE News that police officers can check the TSDB during a traffic stop. While they won’t be able to see any classified information, if your name is in the database the officer may be told to call the Terrorist Screening Center (TSC). “The TSC may then connect the officer to the holder of the intelligence about you to decide what to do — whether to arrest or detain you, or to try to get more information from you.”
The DOJ audit explains that subjects are nominated to watchlists if they meet a “reasonable suspicion” standard. “The reasonable suspicion standard is below the probable cause standard. It’s one step above a hunch,” Kahn said. “It’s like Stop and Frisk: an officer doesn’t need probable cause to do that, he just needs a reasonable suspicion based on articulable facts that you might be a threat."
According to court documents the FBI sent to VICE News, Debra Lubman of the TSC told a court last year that nominations to terrorist watchlists “must not be made solely based on… the exercise of First Amendment protected activities such as free speech, the exercise of religion, freedom of the press, or freedom of peaceful assembly.” Lubman did not clarify which criteria are used to add individuals to the VGTOF gang list.
Regan is concerned that watchlisting is being used to intimidate even first-time activists. “In the last several years, you see young, very young activists who are 19 years old and doing their first protest, those people now have an FBI number.”
Regan said that in her 17 years of experience, she rarely saw federal involvement in low-level cases until recently.
“One of the biggest impacts on civil liberties is the chilling effect on normal people,” she added. “Putting everyday people on these watchlists, the effect of that is ‘be afraid of being branded a terrorist if you go to a single protest.’” Regan believes this is the point of the operation: “The volume of the information they’re collecting, most of that information isn’t useful to the feds, but the paranoia that the collection instills is useful.”