The Obama administration’s no-fly lists and broader watchlisting system is based on predicting crimes rather than relying on records of demonstrated offenses, the government has been forced to admit in court.



In a little-noticed filing before an Oregon federal judge, the US Justice Department and the FBI conceded that stopping US and other citizens from travelling on airplanes is a matter of “predictive assessments about potential threats”, the government asserted in May.

“By its very nature, identifying individuals who ‘may be a threat to civil aviation or national security’ is a predictive judgment intended to prevent future acts of terrorism in an uncertain context,” Justice Department officials Benjamin C Mizer and Anthony J Coppolino told the court on 28 May.

“Judgments concerning such potential threats to aviation and national security call upon the unique prerogatives of the Executive in assessing such threats.”

It is believed to be the government’s most direct acknowledgement to date that people are not allowed to fly because of what the government believes they might do and not what they have already done.

The Justice Department said it must meet a standard of “reasonable suspicion” that a blacklisted individual poses a threat, a step below probable cause.

The declaration comes in a longstanding case, brought by the American Civil Liberties Union (ACLU), arguing that the government does not provide significant steps for someone caught in the “predictive assessments” to get off the blacklists.

On Friday, the ACLU asked Judge Anna Brown to conduct her own review of the error rate in the government’s predictions modeling – a process the ACLU likens to the “pre-crime” of Philip K Dick’s science fiction.

“I believe this is the first case in which a court is being asked to review the basis for the government’s predictive model for blacklisting people who have never even been charged, let alone convicted, of a violent crime,” said ACLU attorney Hina Shamsi.

In March, as a result of the lawsuit, the Department of Homeland Security began informing people of their inclusion on a flight blacklist and permitting them to file a “redress inquiry”. The resulting non-adversarial process has the government perform “careful consideration” of its reasons for blacklisting, with the Transportation Security Agency director as final arbiter. The ACLU considers the new process insufficient.

But the Obama administration is seeking to block the release of further information about how the predictions are made, for the same reason it opposes providing greater information for challenging watchlist inclusion: damage to national security.

“If the Government were required to provide full notice of its reasons for placing an individual on the No Fly List and to turn over all evidence (both incriminating and exculpatory) supporting the No Fly determination, the No Fly redress process would place highly sensitive national security information directly in the hands of terrorist organizations and other adversaries,” the assistant director of the FBI’s counterterrorism division, Michael Steinbach, wrote in a declaration to Brown.

Terrorist organizations would have “every incentive” to manipulate the Department of Homeland Security’s procedures for challenging no-fly list inclusion, Steinbach argued, “in order to discover whether they or their members are subject to investigation or intelligence operations, what sources and methods the Government employs to obtain information or what type of intelligence information is sufficient to trigger an investigation in the first place”.

Joined by Clayton Grigg of the FBI’s terrorist screening center, Steinbech asserted that “mere guesses or ‘hunches’, or the reporting of suspicious activity alone, are not sufficient to establish reasonable suspicion”.

On Friday, the ACLU told Brown that the administration’s predictive assessments pose an “extremely high risk of error”.

Marc Sageman, a former CIA counterterrorism analyst and current academic researcher of terrorism, submitted a brief for the ACLU arguing that the government’s predictive model underpinning the blacklist inclusion was not responsibly rigorous.

“[T]here is no indication that the government has assessed the scientific validity and reliability of its predictive judgments or the information that leads to those judgments, nor has it used a scientifically valid model for predicting, and accounting for, the rate of error that might arise from those predictive judgments. Due to these failures alone, the government’s predictive judgments cannot be considered reliable,” Sageman told the court on Friday.

Without a “scientifically validated process”, Sageman asserted, the government’s judgements about who does and does not pose a terrorist threat to aviation “amount to little more than the ‘guesses’ or ‘hunches’ that Mr Grigg says are not sufficient to meet the criteria”.

Previous court filings, in this case and a related one, suggest that placement on the no-fly and other watchlists results not merely from threat assessments.

In April 2014, five people, all of whom are Muslim, claimed that they were suddenly forbidden from flying after declining FBI pressure to become informants or in order to place pressure upon them to do so. Informants, along with social media postings, have become a driving factor in the FBI’s uptick in arrests of people suspected of ties to al-Qaida and the Islamic State.

In July 2014, the Intercept published an internal watchlisting guidance indicating that nominations to government watchlists were growing, with few rejections. Social media posts were among acceptable criteria, and acquittals in court did not necessarily lead to removals from the list, the Intercept’s document showed.

“The government is depriving innocent people like our clients of their constitutionally protected liberties without providing a fair process for them to challenge the blacklisting and clear their names,” the ACLU’s Shamsi said.