In the course of testimony before the Senate Homeland Security Committee, the Director of the FBI’s “Terrorist Screening Center” (TSC) has, for the first time, stated publicly what the government claims to be the “substantive derogatory criteria” used in the (secret, non-adversarial, extra-judicial) process of determining whether to place a name on the “No-Fly” list, i.e to deny a person their Constitutional and human rights to travel, as well as some tidbits about how that decision-making process works.

We wonder about the cadre of people Director Healy of the TSC is describing: Federal employees (your tax dollars at work!) who spend their working hours, day after day, in some secret room in a secret FBI facility, reviewing one dossier of one-sided “derogatory” information after another, never meeting or communicating with any of the people they judge, and deciding based solely on the dossier (including the records about the subject and their travel history from the “Automated Targeting System”) whether or not to “permit” that person to continue to exercise their rights.

Until someone from this team comes forward to talk about their work, the closest we can come to understanding what it might be like may be the Federal bureaucrats of an earlier era of infamy whose job it was to evaluate interned Japanese-Americans to decide which to allow out of the camps, which to allow to live where in the country, and which to allow to hold which jobs.  Their story is told by Prof. Eric Muller (isthatlegal.org) of the University of North Carolina Law School in American Inquisition: The Hunt for Japanese American Disloyalty in World War II. But unlike today’s TSC staff, they were able to interview and/or see responses to questionnaires completed by internees, rather than judging completely in the dark, from the file of “derog” alone.

If anyone at the TSC wants to talk about their job, we’re all ears. In the meantime, here’s what the head of the TSC had to say about their work: 

Timothy J. Healy
Director, Terrorist Screening Center, Federal Bureau of Investigation
Statement Before the Senate Homeland Security and Governmental Affairs Committee
December 9, 2009

The identities contained in the Terrorist Watchlist originate from credible information developed by our intelligence and law enforcement partners or by our trusted foreign partners. Federal departments and agencies submit nominations of known or suspected international terrorists to the NCTC for inclusion in the NCTC’s Terrorist Identities Datamart Environment (TIDE) database. These nominations are reviewed and then forwarded to the TSC for final adjudication and inclusion in the Terrorist Watchlist. In a similar process, nominations of domestic terrorists are provided to TSC directly by the FBI.

TSC accepts nominations into the Terrorist Watchlist when they satisfy two requirements. First, the biographic information associated with a nomination must contain sufficient identifying data so that a person being screened can be matched to or disassociated from a watchlisted terrorist. Second, the facts and circumstances pertaining to the nomination must meet the “reasonable suspicion” standard of review established by terrorist screening Presidential Directives. Reasonable suspicion requires “articulable” facts which, taken together with rational inferences, reasonably warrant a determination that an individual is known or suspected to be or has been engaged in conduct constituting, in preparation for, in aid of or related to terrorism and terrorist activities, and is based on the totality of the circumstances. Due weight must be given to the reasonable inferences that a person can draw from the facts. Mere guesses or inarticulate “hunches” are not enough to constitute reasonable suspicion.

Most of the individuals on the Terrorist Watchlist are not U.S. citizens, but are terrorists living and operating overseas. The Terrorist Watchlist is made up of approximately 400,000 people. The reasonable suspicion standard includes known or suspected terrorists ranging from suicide bombers to financiers. The “No Fly” list has its own minimum substantive derogatory criteria requirements which are considerably more stringent than the Terrorist Watchlist’s reasonable suspicion standard. In order to be placed on the No Fly list, a known or suspected terrorist must present a threat to civil aviation or national security. Consequently, the No Fly list is a very small subset of the Terrorist Watchlist currently containing approximately 3,400 people; of those, approximately 170 are U.S. persons. On a daily basis, the TSC receives between 400 and 1,200 unique additions, modifications, or deletions of terrorist identities. It is through this nomination and review process that the TSC strives to maintain a thorough, accurate, and current database of known or suspected terrorists for lawful and appropriate use in the screening process.

The Terrorist Watchlist is utilized by law enforcement, intelligence, and other U.S. government agencies, including the Department of Homeland Security and Department of State, as well as foreign partners who conduct terrorist screening operations. The screening process leverages thousands of our law enforcement officers and other governmental partners to help identify, detect, and deter terrorists. Terrorist screening occurs throughout the world at our embassies, ports of entry, and international postal and cargo facilities. Terrorist screening occurs during police stops, during special events, when a HAZMAT license is issued, or when a gun is purchased.1 Screening occurs when passports or visa applications are processed, as well as when citizenship and immigration applications are processed. Select foreign partners use a subset of the Terrorist Watchlist when they conduct screening operations abroad.

Our Tactical Operations Center runs 24 hours a day and receives approximately 150 calls a day. They determine whether individuals encountered are a positive match to a watchlisted known or suspected terrorist. All positive matches, which are approximately 30-40 percent of all reported encounters, are forwarded to the FBI’s Counterterrorism Division for an appropriate law enforcement response. The response could range from arresting the subject, if there is an outstanding federal warrant, to merely gathering additional intelligence information about the subject. During fiscal year (FY) 2009, the TSC processed over 55,000 “encounters” from federal, state, local, tribal, and territorial screening agencies and entities. Of those encounters, over 19,000 were a positive match to a watchlisted known or suspected terrorist.2

Most encounters provide valuable intelligence to the FBI case agent. Each provides information regarding the specific time, place, geographic location, and circumstances of the encounter with the watchlisted individual. During an encounter, additional biographic or biometric identifiers for the watchlisted individual might be discovered, new derogatory information could be obtained, or additional terrorist associates could be identified. Throughout FY 2008 and FY 2009, the number of daily encounters steadily increased. We expect the number of daily encounters will continue to increase as new screening partners join our national and international enterprise.

In conjunction with Department of State, we have completed bilateral terrorist screening agreements with 17 foreign governments. Furthermore, we have provided additional screening support for certain international events, such as the World Games. Over the past two years, our outreach teams have coordinated with all 72 state and local fusion centers. In response to requests from state, county, and local law enforcement agencies, terrorism-related information is now electronically available online via Law Enforcement Online (LEO). It is also available to the Regional Information Sharing System (RISS), and the Homeland Security State and Local Intelligence Community of Interest (HS-SLIC). To provide situational awareness, TSC now notifies fusion centers when encounters occur within their area of responsibility or when encounters occur with cases that originated from their area of responsibility. We also provide coast-to-coast briefings and training to both police dispatchers and law enforcement officers concerning the importance of notifying TSC of any encounter they have with a watchlisted known or suspected terrorist.