I direct CUNY School of Law’s CLEAR project, which stands for Creating Law Enforcement Accountability and Responsibility. Along with my students and colleagues in CLEAR, we have represented scores of clients placed by federal agents on the government’s secretive No Fly List and its Selectee List. The largest of the lists is the Terrorist Identities Datamart Environment, or TIDE. It reportedly contains 1.5 million names, only 1 percent of which — about 15,000 people — are U.S. residents. That mother lode contains a number of sub-lists, including the notorious No Fly List, which contained only 16 names on Sept. 11, 2001, but has now grown to 81,000. People are supposedly put on the list based on a “reasonable suspicion” that they are known or suspected of somehow being connected to terrorism.
In America, “reasonable suspicion” is the low standard by which your rights are trampled if you have the misfortune of not being white or privileged. It is based on reasonable suspicion, for example, that poor black and Latino youths in New York City are stopped and frisked by police in their own neighborhoods. And it is based on reasonable suspicion that Muslims get thrown on terrorist watch lists. The crushing majority of CLEAR’s watch-listed clients have been American Muslims.
Because the lists are shrouded in official secrecy, the public knows very little about them. But even a glancing review of the information we do have suffices to show what folly it would be to pretend that those lists offer a reliable measure of who is truly dangerous. According to the government’s March 2013 Watchlisting Guidance, “concrete facts are not necessary” to make out reasonable suspicion. In fact, the guidance carves out a number of loopholes that dispense with reasonable suspicion altogether. Immediate family members of a suspected terrorist can be listed, as can other associates not themselves known or suspected to be involved in anything — and, finally, individuals with only “a possible nexus” to terrorism. It is unclear what “a possible nexus” actually means, and whether it is any different from a mere hunch.
The watch lists operate like a ratchet: It is beyond easy for a government official to “nominate” someone for listing, yet exceedingly difficult to be removed. And the consequences of such highly arbitrary and potentially abusive government action can be devastating. Four law-abiding CLEAR clients had to sue FBI agents who placed them on the No Fly List to pressure them to become informants. One of them was unable to visit his wife and three daughters in Yemen for years as a result. Another did not see his wife and family in Afghanistan. Yet another could not care for his ailing grandmother in Pakistan. And the fourth lost his job, as it required air travel. Only days before the first major court appearance in the case — presumably to minimize embarrassment in a public hearing — government attorneys informed us that all four of our clients had been removed from the list and should no longer face trouble traveling.
The ordeals endured by CLEAR clients on the Selectee List are no less gripping. One of them, who I’ll call Adam to protect his privacy, a middle-aged, working-class American Muslim, was subjected to extra screening, prolonged delays and extensive questioning at airports and border crossings for more than a year before he contacted CLEAR. In a particularly egregious incident on his return home from a trip abroad, Adam was taken for questioning and separated from his elderly, wheelchair-bound father and his mentally disabled son, who were left alone without assistance in the baggage area for several hours while Adam was detained and searched. By the time U.S. Customs officers, having found nothing, allowed Adam to return to the baggage area, his helpless father was soaked in his own urine, and his son, who had also soiled himself, was extremely agitated.
Although CLEAR was eventually able to secure Adam’s removal from the Selectee List, he never received an apology from his government for the many humiliations he and his family endured. In fact, the government most often will not even tell our clients they are on a watch list, stating in its letters that it “can neither confirm nor deny any information … which may be within federal watch lists.” Compounding that lack of transparency is a lack of due process.
But you don’t have to take my word that the watchlists are error-prone and unreliable. By the government’s own admission in its stock reply letter to people seeking redress because their lives have been upended by placement on a watch list, only “about 2% of … complainants actually have some connection to the Terrorist Watchlist.” According to that same standard official letter, “complaints most often arise … because the traveler’s name and personal information is [sic] similar to the name and personal information of another person.” Translation: The watch lists are littered with cases of mistaken identity.
Using these lists as a basis for new gun laws would only further cement their place in U.S. security policy. Moreover, pretending that effective gun control can be implemented by relying on flawed and discriminatory watch lists is dangerous. At the very least, banning people on the watch lists from buying guns would pile on yet another consequence to the many that already accompany placement on the lists. And since most of those known to be watch-listed are Muslim, it would further single out, stigmatize and scapegoat that vulnerable minority group here at home.
Equally important, this approach to gun control would not even begin to dent the real problem at hand. Gun violence is indeed endemic in America. But the data don’t lie: Although the number and frequency of mass shootings such as the one in Orlando seem to be growing, they still account for only a minuscule percentage of the approximately 11,000 yearly gun homicides in the United States. Perhaps needless to say, an even tinier percentage is the work of Muslim-identified shooters.
Real gun control can take many forms. For example, the government could restrict the availability of certain weapons, expand and improve universal background checks on all firearm sales and regulate private sales. But claiming that terror watch lists are the solution defies logic. That sort of proposal offers only the illusion of progress on gun control, while marking a setback for both equality among Americans and safety from gun violence.