This month the Office of the Inspector General (OIG) of the Department of Justice has released a report on their recent audit of the FBI’s “Terrorist Watchlist Nomination Practices”.

The OIG report contains far more detail than has previously been made public about how and by whom (although very little about why) the government’s watchlists are compiled. It’s must reading for anyone interested in how the US government is deciding who to allow, and who not to allow, to travel or to engage in other activities for which these watchlists are used as blacklists.

As we discuss in our FAQ about Secure Flight, these watchlists serve as the primary determinant of who the DHS (both the CBP for international flights and the TSA for domestic flights, although eventually the TSA under Secure Flight for both) gives permission to fly.

Unfortunately, because it is confined to the “nomination” component of the system, the OIG report fails to address the more fundamental problems with the watchlist system — problems that cannot be resolved by the sort of tinkering with the watchlisting process that is suggested by the OIG’s recommendations. A much more fundamental change is required in how the watchlists and their use are conceptualized.

The declared intention of the watchlist system is to “keep bad people off airplanes”, that is, to exercise government authority to issue prohibitory orders, directed against specific individuals, to prevent them from doing things that they would otherwise have a right to do.

Nowhere in the OIG’s report, however, is watchlisting ever interpreted, analyzed, or tested against the standards applicable to a decision-making process for the issuance of such prohibitory administrative orders.

That’s typical of how the government has executed former Secretary of Homeland Security Chertoff’s stated goal of avoiding judicial review of no-fly decisions:

One agency, such as the FBI, “nominates” someone to be “placed on a watchlist”. That’s just a nomination, not a decision, and at most is directed toward putting a name on a list — a purely internal government function — not imposing any sanctions that would be subject to due process. Other departments of the or under the direction of the FBI, the National Counterterrorism Center and the Terrorist Screening Center, enter the nominated names into watchlists. They aren’t really responsible for any decision, of course, since they rely on the “derogatory” information provided by the nominating agency. Finally, the CBP, TSA, and other departments and agencies order airlines and other private companies, including common carriers, to deny services to people on those watchlists. But they aren’t making any decisions about who can fly, they say — they are merely enforcing a list that someone else has created.

The end result is that, as intended, it’s impossible to hold any specific agency or department responsible for the administrative decision to impose sanctions against a particular individual. And that, in turn, makes it impossible to obtain due process or judicial review.

The fundamental problems with this system, as with the extrajudicial detention of “enemy combatants” at Guantánamo in lieu of criminal prosecution, or extrajudicial “extraordinary rendition” in lieu of deportation, are (1) the executive presumption of administrative power to impose sanctions without due process or judicial review, (2) The failure even to consider resorting to existing methods of law enforcement, and (3) the failure of the courts to question that presumption and to apply to these extrajudicial sanctions the norms applicable to decision-making about the imposition of government sanctions against individuals.

Just as the solution to the problem of extrajudicial detention at Guantánamo is not further tinkering with the extrajudicial “military tribunal” kangaroo courts, so the solution to the problem of the “no-fly” list is not further tinkering with the extrajudicial “nomination” process, or the creation of a new extrajudicial (internal and secret) “redress” system, but recognition that the imposition of sanctions is a judicial function, and that the only lawful basis for preventing people from exercising rights, such as travel by common carrier, is — surprise — a judicial order.

We can find no evidence that any Federal law enforcement or counterterrorism agency, including the DHS or FBI, has ever made any attempt to utilize the existing legal procedures which would permit them to seek such judicial orders restricting the travel of people against whom there is sufficient evidence to justify such restrictions.

That’s our answer to the question, “What would you do about the watchlists?” We wouldn’t have the present problems with the watchlists if those watchlists were lists of people subject to court borders (warrants, injunctions, or restraining orders) restricting their liberty to travel.

Just as it’s time to bring Guantánamo within the purview of the rule of law, by bringing the prisoners before the courts or releasing them, so it’s time to bring no-fly orders within the rule of law, by petitioning courts to issue no-fly orders and removing any names not subject to such court orders from those lists. There’s no need to reinvent the wheel of due process and judicial review. Courts already have all of the necessary procedures in place to a value and act on motions for restrictive orders.