LAST FEBRUARY, attorney Anisha Gupta represented a Latino man charged with two misdemeanors: trespassing and resisting arrest. At her client’s arraignment, the first appearance before a judge where a bail determination is made, Gupta thought her client would be quickly let out on his own recognizance — meaning a release without posting bail; the prosecution was not even asking for bail to be set.
The judge interrupted proceedings, however, and in open court announced that Gupta’s client, who spoke no English, had a terrorist watchlist notation on the last page of his record of arrest and prosecution, better known as a rap sheet.
In New York, the first part of an individual’s rap sheet lists his or her in-state criminal history, obtained from the New York State Division of Criminal Justice Services, or DCJS. The last part shows any criminal history that occurred out of state or at the federal level. Gupta typically considered the last pages to be of little relevance for court hearings in the Bronx, because they are frequently rife with errors. Judges and prosecutors don’t tend to focus on them, according to Gupta.
“I said to her, ‘Judge, I don’t think he’s on the terrorist watchlist. There are so many errors on the last pages of people’s rap sheets,’” recalled Gupta, who works in the criminal defense practice of the Bronx Defenders. “And the judge said, ‘Well, counsel, I’ve never seen this terrorist watchlist thing. We’re going to have to check on it. I’m not going to release him.’”
“Counsel, he could be a sleeper,” the judge continued, according to Gupta.
Gupta’s client is one of an unknown number of criminal defendants who have found out their name is on the terrorism watchlist because a judge, prosecutor, or public defender noticed a notation on their rap sheet while they were in court on an unrelated matter. The notations are provided by the National Crime Information Center, or NCIC, an FBI-run database of criminal records that is used by virtually every law enforcement agency in the U.S. to investigate suspects the agencies encounter.
That database includes information culled from the Terrorist Screening Database, or TSDB, which is known as the “watchlist” and overseen by the FBI’s Terrorist Screening Center. The watchlist includes hundreds of thousands of names. Getting arrested and going through airport security are currently the only ways for individuals to find out if they are on the terrorism watchlist, since the list is only seen by law enforcement and is not available to the public, even to those included on the list. There are no available numbers for how many criminal defendants are on the terrorist watchlist.
The placement of terror watchlist notations on rap sheets highlights the broad dissemination of the list, which has ballooned in size since the September 11 attacks. Every police force in the country has access to the NCIC, which includes files of information on people collected from lists like the sex offender and terrorism databases. When a police officer enters a name into this database, any watchlist information associated with that person comes up. This is how a routine traffic stop can turn into a terrorism investigation.
Civil liberties advocates believe that being included on the watchlist — which happens with little oversight and sometimes with no concrete proof of terrorist activity — could have an unfair impact on the treatment of those who interact with the police and the criminal court system. And attorneys from the Creating Law Enforcement Accountability and Responsibility project at CUNY School of Law, known as CLEAR, say including the watchlist notations on rap sheets is a violation of DCJS regulations because the notations do nothing to establish a criminal record and can be inaccurate. CLEAR attorneys also say the dissemination of watchlist information to judges and prosecutors runs counter to federal policy stating that the watchlist should be used for investigative purposes — not for criminal justice purposes like setting bail.
“The federal watchlists that the compilers of rap sheets draw on for these notations are notoriously arbitrary and inaccurate. People are placed on these lists without ever being told why or given an opportunity to contest their listing. And the lists appear to focus disproportionately on individuals with Muslim-sounding names,” said Ramzi Kassem, an associate professor at CUNY School of Law and the founder and director of CLEAR, in an email.
New York’s Division of Criminal Justice Services “provides criminal justice agencies with criminal history records on file with New York state, the FBI, and other states, in addition to information contained in the FBI’s NCIC database, which includes terrorism watchlist information,” said Janine Kava, a spokesperson for DCJS. She added that the criminal justice agencies that receive the information “are in the best position to determine whether or how the information they are permitted to receive should be used in a particular case, consistent with federal and state laws and regulations.”
Gupta found her client’s watchlist notation strange, however. The first and last names did not match her client’s at all. They were common Muslim names, whereas her client was a Spanish speaker with a very common Latino name. The only detail on the watchlist notation that matched her client was the birthdate.
Despite the different names, Gupta’s client was forced to sit in jail for a few more hours after his arraignment because of the watchlist notation. Eventually, for reasons not disclosed to Gupta, court officers told the judge that her client was not a threat, and he was released. After he got out, he called Gupta and asked, “Do people think I’m a terrorist?”
Rap sheet errors are extremely common: One study by the Legal Action Center estimated that at least 2.1 million rap sheets in New York contain mistakes. Adding information from the error-riddled terror watchlist — a 2009 Justice Department audit found that over a third of the names on the watchlist were based on outdated information — onto already error-prone rap sheets is bound to compound this problem.
The watchlist has drawn increasing criticism in recent years as its numbers have exploded. More than 40 percent of the people on the watchlist — who number over 680,000 — are not linked to any specific terrorist group, according to an Intercept investigation published in 2014. In 2011, the FBI revealed that people could remain on the list even if they were acquitted on terrorism-related charges in criminal court.
“You have the word ‘terrorist’ printed on a rap sheet that a judge is looking at to determine whether to release someone or to set bail and, in effect, ensure that they remain behind bars. That notation is very loaded. I think judges, just like anybody else, are subject to the same biases and prejudices that exist in the rest of the community,” said Gupta. “The fact that your freedom could be taken away based on a mysterious designation you didn’t even know about, and that is probably wrong, is a very scary thing indeed.”
The inclusion of the information on rap sheets shows how the war on terror’s dragnet is ensnaring criminal defendants faced with charges that have nothing to do with terrorism.
“The notations can distort how the criminal justice system interacts with a defendant — it can make it more likely that the prosecutor will dig in his heels, that the judge will set a higher bail or deny it outright, that a harsher sentence is meted out, or that parole is denied,” said CLEAR’s Kassem. “Outside of the criminal justice system, these rap sheet notations can cost someone their taxi driver’s license or lead a police officer to treat them more harshly during a routine traffic stop.”
In another case handled by the Bronx Defenders, a defendant with a common Muslim name was arrested in the Bronx in February 2014 for driving while intoxicated. Molly Schindler, the attorney who represented the man, said he had no prior criminal record. But he did have a terrorist watchlist notation on his rap sheet.
The notation listed a first name starkly different from her client’s, but an identical last name and birthdate.
After the arrest, the police held the defendant’s car as evidence for the upcoming case, even though it could not be brought into a courtroom. In April of that year, Schindler called an assistant district attorney to ask for the release of the car. He refused, however, because of the watchlist notation. “He saw the rap sheet notation, and he said, ‘I want to check with the feds in case they need to make sure there’s no bomb in the car or something,’” Schindler recalled in an interview.
About a week later, the state agreed to release the car, which Schindler’s client needed to get to work. The client eventually pleaded guilty to a noncriminal traffic infraction for driving while intoxicated.
The Intercept reviewed three instances of watchlist notation on rap sheets in New York. These notations can also show up on criminal records in other states. Washington State Patrol and the Florida Department of Law Enforcement, for instance, both told The Intercept that watchlist notations appear on criminal record histories in their states.
The notations assert that the individuals have “possible ties” to terrorism and instruct law enforcement to contact the Terrorist Screening Center. They also say, “Do not advise this individual that they are on a terrorist watch list.”
The watchlist notations on rap sheets can also have severe consequences for people’s lives outside of the criminal justice system.
In February 2015, a Yemeni immigrant who asked that his name not be used was being arraigned on second-degree assault charges in New York County Criminal Court when his lawyer told him he was on the terrorism watchlist. Though the charges he faced (which have since been dropped) had nothing to do with terrorism, there was a notation on his rap sheet stating he was on the watchlist.
“I went crazy, and I was screaming,” he said through a translator in a phone interview. “I told [my lawyer] I am not a terrorist, and I don’t know any terrorists. Me and my family members, or even people from my town, we have nothing to do with this. I don’t know what this means.”
His life took a turn for the worse after he got out of jail 24 hours later. He told friends and his employer at a grocery store about his watchlist ordeal, but instead of offering support, they shunned him. He lost his job and said nobody talks to him or picks up his phone calls anymore.
“Everybody’s saying, ‘If I hire you, there might be problems for me,’” he said. A green card holder, he worries that being labeled a terrorist might impact his citizenship prospects.
Civil liberties advocates have long criticized the criteria used to put a person in the database as shoddy and based on an elastic standard of “reasonable suspicion.” The FBI-run Terrorist Screening Center says an individual is included on the list when he or she “is reasonably suspected to be, or have been, engaged in conduct constituting, in preparation for, in aid of, or related to terrorism and terrorist activities.” In its briefing on the watchlist, the American Civil Liberties Union states that this standard is “baffling and circular” in that “it essentially defines a suspected terrorist as a suspected terrorist” and “lacks any requirement that an individual knowingly engage in wrongful conduct.”
Even celebrated political leaders like former Massachusetts Sen. Edward Kennedy and South African leader Nelson Mandela have been mistakenly placed on the watchlist.
In a November 2012 letter to DCJS, attorneys from CLEAR and the Fordham University School of Law protested the placement of watchlist information on rap sheets, because it does not establish a criminal record.
“We are concerned about the prejudicial effect the inclusion of this opaque, yet toxic, information has on our clients’ cases and lives,” the attorneys’ letter said. “Such contaminated information has no place on a document that plays a critical role in the adjudication of important matters pending in criminal courts.”
The division responded in February 2013, saying that it is authorized to share information beyond a criminal record — like watchlist notations — with relevant agencies. While the letter said DCJS would further review the issue, the law schools have not heard back from the agency since that time.