The Intercept has published the March 2013 edition of the US government’s Watchlisting Guidance. This 166-page document, previously kept secret as Sensitive Security Information (SSI), provides standardized but not legally binding “guidance” to Federal executive agencies as to how, on what basis, and by whom entries are to be added to or removed from terrorism-related government “watchlists”, and what those agencies are supposed to do when they “encounter” (virtually or in the flesh) people who appear to match entries on those lists.

The Intercept didn’t say how it obtained the document.

The “Watchlisting Guidance” is the playbook for the American Stasi, the internal operations manual for a secret political police force.  As such, it warrants careful and critical scrutiny.

Most of the initial reporting and commentary about the “Watchlisting Guidance” has focused on the substantive criteria for adding individuals and groups to terrorism watchlists.  Entire categories of people can be added to watchlists without any basis for individualized suspicion, as discussed in Section 1.59 on page 26 of the PDF.

These criticisms of the watchlisting criteria are well-founded. But we think that there are at least as fundamental problems with what this document shows about the watchlisting procedures and the watchlist system as a whole.

Let’s be clear from the start that “watchlist” is, as applied to these lists, a misleading euphemism.

The term “watchlist” suggests a list of people who are to be watched. The “Watchlisting Guidance” makes clear the extent of this surveillance: In any “encounter” with an individual believed to match an entry on any terrorism watchlist, every physical trace (“pocket litter”, etc.) and every bit of electronic data in their possession (the unique identifiers and all other data on the magnetic stripe on their grocery-store loyalty card, the RFID chip in their EZ-Pass road toll payment transponder, etc.) is to be collected, added to the permanent file about them, and “shared” throughout and beyond the “intelligence” and “homeland-security” communities.

But “watching” is by definition a passive information-gathering activity, while these “watchlists” are intended and used not just for surveillance but for active control of data subjects’ lives and activities, most obviously through orders to common carriers and “screeners” regarding treatment of people on the “No Fly” and “Selectee” (selectee for more intrusive search and/or interrogation whenever they travel) lists.

There’s no recognition in the “Watchlisting Guidance”, or (so far as we can tell) in the minds of those who have created and implemented the practices it describes, of any distinction between the criteria for watchlists (investigations) and those for blacklists or blocklists (injunctions or restraining orders).  There is no mention anywhere in the 166 pages of the “watchlisting” guidance of any judicial role in making or reviewing any No-Fly, search selection, or other “watchlisting” decisions.

What’s being done with terrorism watchlists is as though the FBI had taken its authority to maintain a list in NCIC of individuals for whose arrest warrants have been issued, and construed that as authority for the FBI to add entries to its “arrest list” on its own administrative initiative, without judicial involvement, and then to act on those FBI/NCIC “arrest list” entries as though they were in fact judicially issued arrest warrants.

The “Watchlisting Guidance” acknowledges that watchlisting has consequences, such as prevention of travel, beyond mere watching. Once it is recognized that these so-called “watchlists” are really lists of people whose exercise of fundamental rights is being restricted by government action, it becomes clear that the proper role of executive agencies in “watchlisting” is purely clerical: maintaining a list of those against whom No-Fly injunctions or restraining orders, or warrants selecting individuals for more intrusive searches, have been issued by judges.

It’s also important to recognize that the “Watchlisting Guidance” is merely internal advice to members of the “intelligence” and “homeland-security” communities. It is not enforceable (even now that it has become public knowledge), contains no rules, and creates no rights.

What about the rights we already have under federal law, the Constitution, and international human rights treaties?  The “Watchlisting Guidance” ignores most of these rights, and minimizes those few that it mentions.

The only rights mentioned in the “Watchlisting Guidance” are those protected by the First Amendment to the US Constitution.  The “Watchlisting Guidance” purports to prohibit watchlisting/blacklisting of individuals or categories of people based solely on their exercise of First Amendment rights. (Watchlisting/blacklisting based primarily on such activities is permitted, as long as there is any scintilla of other derogatory information, no matter how weak or discredited, in the file.)

But that purported prohibition on watchlisting/blacklisting on the sole basis of activities protected by the First Amendment is contradicted by mandates throughout the “Watchlisting Guidance” for watchlisting/blacklisting based on just such activities.

For example, individuals or categories of people can be watchlisted solely on the basis of their lawful “association” with other watchlisted individuals or suspected terrorists (Section 1.2, p.5 of the PDF; Section V, pp. 42-45; note that the printed page numbers do not correspond to the page count of the PDF). Such associations are directly protected by the assembly clause of the First Amendment.

Travel itself — the exercise of the First Amendment right of the people peaceably to assemble — can also be the basis for watchlisting/blacklisting. Travel to places on some secret list of blacklisted destinations is defined as presumptively suspicious (Section 3.9.4, p. 38).

We’ve been saying for years that the US government regards all travelers as suspected terrorists. Now we have that stated explicitly in the “Watchlisting Guidance”.

Since “travel for no known lawful or legitimate purpose to a locus of terrorist activity” is deemed sufficient basis for blacklisting, does that mean that to avoid ending up on the No-Fly List we should send the Terrorist Screening Center documentation of the purpose of each trip we take, so our purpose won’t remain unknown to the TSC watchlisters if our destination has been, or is later, secretly deemed a locus of terrorist activity? To whom, and in what format, should we address these travel purpose reports?

The “Watchlisting Guidance” claims that non-US citizens outside the US have no First Amendment rights, but fails to mention any of the rights that they do have. The International Covenant on Civil and Political Rights (ICCPR) guarantees freedom of movement as a human right that doesn’t depend on citizenship. But the “Watchlisting Guidance” ignores the ICCPR and the other international treaties to which the US is a party.

Statutory rights are also completely ignored in the “Watchlisting Guidance”.  Federal law authorizes airlines to deny passage to otherwise-qualified would-be passengers only on the basis of threats to aviation, for example.  But the “Watchlisting Guidance” authorizes No-Fly listings on the basis of suspicions or threats unrelated to aviation (Section 4.7, p. 51), without any statutory basis for such travel restrictions.

The Privacy Act forbids any agency from maintaining records of how individuals exercise rights protected by the First Amendment without explicit statutory authority.  But the “Watchlisting Guidance” mandates the collection and recording of an extraordinary range of details about travel (assembly), associations, communications, and other protected activities in any “encounter” with a watchlisted individual (Section 5.11, pp. 66-70). No explicit statutory basis for maintenance of any of these records is cited, nor are we are aware of any.

When John Gilmore, founder of the Identity Project, obtained portions of the DHS files about himself in 2007, he discovered that US Customs and Border Protection (CBP) had kept a record  of the title of a book he was carrying when he entered the US. At that time, and subsequently, DHS officials have claimed that there is no policy or practice of collecting such data. We now know that this is a lie: the “Watchlisting Guidance” specifically mandates recording the titles and the condition (“new” or “dog-eared”; are these descriptions for a used-book dealer’s catalog?) of books carried by watchlisted travelers (Section 5.11.2, item 15 (c), p. 70), as well as the details of any library cards in their possession. These practices are in violation of the Privacy Act as well as the Constitution.

Other rights that are ignored by the “Watchlisting Guidance” are those regarding due process of law (as noted above, there’s no mention of any legal process at all), the burden of proof (the “Watchlisting Guidance” explicitly authorizes watchlisting not based on any individualized evidence or suspicion), and the presumption of innocence.

The “Watchlisting Guidance” purports to authorize watchlisting/blacklisting solely on the basis of allegations of crimes for which the individual has been acquitted.  More broadly, it creates a thinly-veiled but explicit (and illegal) presumption in favor of watchlisting/blacklisting in cases of doubt or uncertainty.  “When reasonable minds could disagree on a record, a NOMINATOR will make a decision in favor of sending the nomination to NCTC for consideration and additional review.” (Section 1.4, p. 7).  But, “In determining whether an individual is KNOWN or SUSPECTED TERRORIST, NCTC will rely on the designation of KNOWN TERRORIST provided by the NOMINATOR as presumptively valid.” (Section 1.51, p. 22).

What’s described in the “Watchlistiung Guidance” is a witchhunting and guilt-by-association system whose goal is to place more individuals under suspicion.  If there isn’t enough evidence to justify watchlisting, agencies participating in the process are exhorted to search for more derogatory information.  The “Watchlisting Guidance” repeatedly mandates collection, retention, and sharing of all available derogatory information. There’s only one passing reference to exculpatory information.

The way to ensure that potentially exculpatory information is considered is, of course, to use the existing adversarial procedures for injunctions and restraining orders for judicial consideration of government requests for watchlisting/blacklisting orders restricting the rights of individuals or groups of people. But that’s not possible within the regime of secret ex parte administrative decision-making described in the “Watchlisting Guidance”.