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What degree of evidence is required for the terrorism watch list?

The question of what standard should be used when placing someone on terrorism watch list is currently before the Ninth Circuit Court of Appeals. While Iowa is in the Eighth Circuit, the ruling could be significant nationwide because much of the evidence against watch-listed people is submitted by state and local law enforcement.

Five men have sued the federal government, claiming that they have suffered adverse consequences from being on the National Suspicious Activity Reporting Initiative (NSI) watch list -- a list that none of them did anything to be placed on. They contend that they were placed on the list for innocent things such as buying a computer at Best Buy, taking photos in public or being a member of the Muslim faith.

It seems the government does not dispute the reasons for the men's inclusion on the list. Instead, it argues that seemingly innocent information has a legitimate role to play there.

"If you have that innocent piece of information in the larger picture, it can take on greater magnitude and be the missing piece to fill in the complete puzzle so you can identify a potential national security interest," argued a Justice Department lawyer.

Whether or not that's true, the definition of suspicious activity that law enforcement agencies are supposed to use when submitting suspicious activity reports to the NSI watch list is "observed behavior reasonably indicative of pre-operational planning related to terrorism or other criminal activity."

The plaintiffs argue that the "functional standard" of proof that someone has engaged in suspicious activity is lower with regard to the watch list than is required by law. A longstanding rule requires "reasonable suspicion" before intelligence can be collected on U.S. citizens.

If the reasonable suspicion standard is not required of the NSI watch list, the plaintiffs argue, the watch list violates the rights of those included.

The government argued that suspicious activity reports are not a "product of investigation" aimed at criminal prosecution, so they do not constitute intelligence collection.

If state and local law enforcement submit suspicious activity reports that are based on something less than reasonable suspicion, the FBI could revoke their access to the system. The plaintiffs would like to know how many times the FBI has revoked a law enforcement agency's access for this reason, but a judge denied their request for discovery on the issue.

Is it too much to ask for law enforcement to be at least reasonably suspicious of people before placing them on a watch list that could expose them to increased law enforcement scrutiny and impact their ability to travel?

The Ninth Circuit has taken the issue under advisement and is expected to rule in several months.

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