Legal Speak vs. the Law

-by Josh Hilgart

The “legal standards” allegedly outlined by newly released F.B.I. documents are totally illusory.

The F.B.I. has released documents purporting to outline a legal framework under which the government maintains the “terrorist watch list.” As the New York Times article puts it, the documents “lay out, for the first time in public view, the legal standard that…must [be met] in order to add a name to the list.”

The New York Times supports the view that there is a public relations angle here, paraphrasing Timothy J. Healy, director of the F.B.I.’s Terrorist Screening Center: “the documents show that the government was balancing civil liberties with a careful, multilayered process for vetting who goes on it-- and for making sure that names that no longer need to be on it came off.” Healy, authoritzed to speak to the press about these documents, is clearly casting them as evidence of legal protections, and the article's general tone implies that there is less to worry about when it comes to these lists than you might think.

Because the documents were released pursuant to a Freedom of Information Act request and have not been adjudicated, they cannot be held to any standards of proof. They represent only the untested version of the facts and law as the government would have it. It other words, the documents carry little more weight than any unsubstantiated claim calculated for public consumption. That does not mean, however, that it isn't worth seeking evidence within them that might substantiate Healy's claims-- espeically given what's at stake.

According to the documents, the database has about 420,000 names, 8,000 of which belong to Americans. For those on the list, even a not-guilty verdict may not always be enough to get someone off. The NYT paraphrases former Homeland Security official Stewart Baker: “even if the intelligence about someone’s possible terrorism ties fell short of the courtroom standard of ‘beyond a reasonable doubt,’ it could still be appropriate to keep the person on the watch list as having attracted suspicion.”

Unquestionably, being on the terrorist watch list can give rise to limitations on one’s freedom of movement, constituting a government taking of liberty. Such a taking raises two obvious issues: 1) under what statutory or constitutional authority is this action taken, and, 2) if such authority is found, what due process concerns are raised and how are they addressed? These questions deal directly with Mr. Healy’s claim of a balancing structure, and go well beyond that.

The New York Times dodges questions of authority entirely, simply implying legal authority in its headline and first sentence:


We are left to wonder under what authority they “can” do this, or by whom this is “permitted.” Is the power granted by the President? The U.S.A. PATRIOT Act? Congress’ AUMF? Who knows. Any search within this article for such authority will be in vain. Of course, there are some obvious constitutional provisions that would argue against such power, most notably the Fourth, Fifth, Sixth and Fourteenth Amendments.

Without evidence of statutory or constitutional authority, the “standards” alleged to be found within these documents are already in a legal no-man’s-land. But because this F.B.I. release is more akin to a public relations document than an in-court legal argument, we’ll skip the legal authority questions and go straight to the due process provisions or "legal standards" the Times claims are to be found within the documents. (Indeed, this is likely the best we're going to get, due to the fact that the Obama Administration, like its predecessor, argues that such programs cannot be examined by a court.)

It turns out that the article offers very little on such standards. This is as close as it gets:

The guidance memo to F.B.I. field offices says someone may be deemed a “known or suspected terrorist” if officials have “particularized derogatory information” to support their suspicions. That standard may be met by an allegation that the suspect has terrorism ties if the claim is corroborated by at least one other source” (emphasis added).

Great! Government has a standard: “particularized derogatory information.” How is that defined? We aren't told. Is this the only way to get on the list? We aren't told (“may be deemed” does not mean “only if”).

And how does “particularized derogatory information” become attached to your name? All it takes is one person’s hearsay. Summed up, the “legal standard” presented is that if someone you may or may not know (and cannot challenge in court), says/implies something of an unknown nature about you, you can be blocked from flying or crossing borders.

As to how one gets off the list, the only process presented here that approaches a “standard” appears designed to make removal more difficult: “The F.B.I. procedures encourage agents to renominate suspects for the watch list even if they were already put on it by another agency-- meaning multiple agencies would have to be involved in any attempt to later remove that person.” Mentioned nowhere in the article is a standard that would encourage removal, let alone describe the circumstances under which a name would have to be removed.

In fact, the New York Times explicitly states that traditional due process protections are not among the standards: “The procedures offer no way for people who are on the watch list to be notified of that fact or given an opportunity to see and challenge the specific allegations against them.”

Such a lack of due process would be bad enough for the losses of liberty about which we already know, but the documents go on to describe additional practices that endanger those on the list in ways other than being bumped from a flight or searched at the border.

The Times reports that the documents call for the federal government to share the lists with local police officers to check names during traffic stops-- and treat suspects differently based on the “handling codes” ascribed to each name within the system:

Some people… are to be questioned while officers check with the Department of Homeland Security to see whether it has or will issue a “detainer” request…others should be allowed to proceed without delay.

Updating our due process analysis with this new information, we have something like this: If someone you may or may not know (and cannot challenge in court), says/implies something of an unknown nature about you, you can be blocked from flying or crossing borders and even detained by local cops who may live across the street from you, attend your church, have children in the same schools as yours, and who have no idea why you’re on the list. No foreseeable problems there! (Relevent here is case law that clearly establishes the need for due process when the government calls an individual's reputation into question.)

It is also worth noting that the article presents zero evidence to suggest that the process described encompasses the totality of the watch list’s management. There is no given evidence to suggest that a government employee couldn’t unilaterally place someone on the list, or arbitrarily change individual “handing codes.” The failure to explain the terms under which someone ends up on the list (“particularized derogatory information”) means that targets could include anyone-- IMF protestors, bank protestors, environmentalists, and even peace activists. There's no language like “terrorist acts” or “attacks on the U.S. or its interests”; the phrase is completely undefined. For that matter, these "legal standards" suggest no barrier to the government using the list and the powers that surround it for political purposes (the case of former State Department employee Steven Van Buren lends credence to the notion that they are so used).

Perhaps most abusurd, the New York Times’ reporting on other matters (ignored here) has already established the unlikelihood of any legal protections, at least to the point where editors should find nothing of value in these documents. For example, the paper has reported on the presidential claim of authority to kill Americans anywhere in the world, without more than his own declaration. What possible "legal standards" could exist for those on the terrorist watch list when the government claims there are none in the event of summary execution? Even if there were real legal protections described in these documents, it would be irresponsible to assume that the government believed those descriptions actually limit its actions in any way-- i.e. that those descriptions constituted any kind of actual legal protection.

I will at least give the government credit for not claiming standards that it likely doesn’t follow, insofar as the article and (presumably) the documents it addresses articulate no discernible standards at all. But even as a PR exercise, it should fail. While likely intended to engender public trust in our government’s post-9/11 powers, this public release should do just the opposite.

The lack of candor and disrespect for the law, as evidenced by the completely unsubstantiated claims of “legal standards” by government spokesmen as well as the Times, should call into question not just the terrorist watch list, but the legal integrity of any government program withheld from public scrutiny. Put another way: if this is how our government pays homage to due process in public, imagine what little respect it gives such fundamental legal protections as it carries out its work in secret.