EVEN DEATH WON’T GET YOU OFF the U.S. terrorism watchlist. As of last July, over 3,500 suspected terrorists included in the U.S. government’s central terror database were “confirmed dead” and another 13,000 were “reportedly dead,” yet many of their names continued to be actively monitored in databases like the no-fly list, according to an intelligence assessment prepared by the Department of Homeland Security in August of this year.
The numbers, which have not been previously reported, come from an intelligence assessment marked “for official use only” that was obtained by The Intercept. The central concern of the document, which was prepared by DHS’s Office of Intelligence and Analysis, was that suspected terrorists may be using social media “to fabricate stories of their deaths in an attempt to evade security scrutiny, a tactic that prominent terrorists used before the proliferation of social media.”
In the document, DHS warns that suspected terrorists who have faked their deaths could then return home using false identities. Yet the details contained in the intelligence assessment also underscore the contradictory guidance that agencies follow regarding watchlists.
“A significant number of ‘dead’ and ‘reportedly dead’ KSTs [known or suspected terrorists] cannot be placed on the No Fly List, because of insufficient biographic information needed to deny boarding to them,” the Office of Intelligence and Analysis concluded, after reviewing the numbers.
The confusion reveals the fundamental flaws in the list according to Hina Shamsi, the director of the American Civil Liberty Union’s National Security Project. “We’ve long known that the watchlisting system is bloated and based on vague and overbroad criteria,” Shamsi says. “For the living, it is also a system in which there is no meaningful way to challenge wrongful inclusion and correct government error. That’s what we’re litigating to change with the no-fly list, the watchlist with the most draconian consequences for innocent people.”
The United States employs a series of overlapping lists of suspected terrorists. The Terrorist Identities Datamart Environment, or TIDE, maintained by the National Counterterrorism Center, includes classified information, and as of 2013, had over one million names. There’s also the State Department’s Consular Lookout and Support System and the FBI’s centralized Terrorist Screening Database, among others.
The various agencies apparently deal with death in different ways. For example, DHS found that nearly 20 percent of those “confirmed dead” on the TIDE database “remained watchlisted” in the FBI’s Terrorist Screening Database, and the majority of “reportedly dead” terrorists also remained on other terrorism databases — one-fifth were still monitored via the no-fly list.
Mike German, a former FBI agent and fellow at the Brennan Center’s National Security Program, says that leaving the names of dead people on watchlists is just another illustration of how dysfunctional the system has become. “The harm is that when the list is over a million names, or approaching a million names, it’s no longer a useful document,” German says. “It’s no longer about whether this person is a threat; it’s about a bureaucratic method of playing CYA.”
While keeping dead people on the watchlist may be less concerning than wrongfully including the names of innocent people, it is still detrimental to security, according to German, because it’s the equivalent of having a fire alarm that goes off all the time: “The watchlist alarm is ringing constantly, because it has far too many names,” he says. “The response time has been lost because of over-vigilance.”
A number of reports have criticized the watchlists for being mismanaged and unfair: A 2009 DHS Inspector General report concluded that innocent travelers were often unable to clear their names from the lists, and a Justice Department Inspector General report the same year found that the inclusion of over one-third of people on the lists was based on outdated information.
Last year, The Intercept reported that almost half of the people on the FBI’s Terrorist Screening Database were in fact not linked to any specific terrorist group. The Intercept also published documents detailing how those lists are maintained, including the 2013 Watchlisting Guidance.
Among the central complaints about the watchlists is that there is no reliable way to determine whether non-terrorists are being unfairly included. This new document demonstrates that the government looks at the problem from the opposite perspective: Officials are loath to take anyone off the list, even if they are dead.
“When KSTs are reported dead, these individuals frequently maintain their watchlist status, because U.S. procedures require that all known missing, unexpired travel documents belonging to these individuals be maintained for screening purposes,” the document explains. The concern, as expressed by the government, is that other terrorists could use these travel documents to prepare for an attack.
U.S. watchlisting was in the news again this week, when WikiLeaks began publishing emails hacked from the AOL account of CIA Director John Brennan. The account included details of a protest lodged by Brennan’s then-employer, The Analysis Corporation, over what appears to be a CIA contract for watchlisting.
Concerned that a CIA watchlist included a staggering 1.8 million names, one company employee wrote in an email, “That just seems excessive – it’s 7% of the IZ [Iraqi] population!!”
It’s unclear which watchlist was involved (the CIA declined to comment on the issue other than to condemn the release of the documents, which the agency says were unclassified).
At least for those databases addressed in the DHS document, part of the underlying problem is that agencies have no uniform way of confirming deaths. The 2013 Wachlisting Guidance says that terrorists are “confirmed dead” if corroboration is provided by two credible sources, or if the death is part of a high-profile case reported in the media. The TIDE database, on the other hand, allows for confirmation of death based on any one of three additional criteria, according to the DHS document: the suspected terrorist carried out an attack that resulted in his or her death, DNA confirmation of death, or “the dead KST’s photo is available.”
“It’s an endemic problem to the whole system: There isn’t really any review mechanism by which the agencies can confirm or test their guesses about people’s terrorist proclivities,” says Anya Bernstein, an associate professor at SUNY Buffalo Law School. “The fact that there are so many dead people on it highlights that.”
As to the central concern raised in the document — whether social media can be used to confirm someone’s death — the government appears to be undecided.
“The 2015 Watchlisting Guidance was being finalized as of late July,” the report says. “Latest drafts of this document still allow for the inclusion of social media into watchlists and the ability to confirm the death of a KST if it is part of a ‘high-profile case in the public sphere.’”
DHS referred all questions to the FBI’s Terrorism Screening Center, which declined to comment, noting that the document in question belonged to DHS. A spokesperson for the National Counterterrorism Center also declined to comment.