Taking Liberties: The War on Terror and the Erosion of American Democracy (12 page)

This overblown campaign is not only harmful to Muslims and to the charities themselves. As the 9/11 Commission staff commented, the widespread perception that this enforcement program is unfair and biased can “undermine support in the very communities where the government needs it most.”
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Muslims interviewed agreed that the government’s campaign against Muslim charities and donors is the single greatest cause of their communities’ alienation and mistrust of law enforcement.
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The leader of a mosque in Detroit said:

We want to help in building the U.S.A., and we want to work with the Department of Homeland Security as trusted partners, but we feel they treat us as guilty until proven innocent. They want us as spies, not as partners. Bridges are not being built, no—they are being torn down.
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There are other reasons to be concerned that this mode of operations may be counterproductive.
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International cooperation with our antiterrorism efforts is undermined when officials in other countries distrust American assurances that they have followed the money. The “Muslim street” has reason to believe that the United States, despite the reassuring words of Barack Obama, does equate Muslims with terrorists. Islamic banking and finance expert Ibrahim Warde notes: “Here in the U.S. you occasionally hear stories but by and large people aren’t aware of this, whereas in Muslim countries everyone is aware of these stories and actions against Muslim charities.”
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Residents of other countries may also be disturbed by the fact that in addition to violating our own Constitution, limiting the religious freedom of American Muslims violates international human rights law, including the International Covenant on Civil and Political Rights
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and the Universal Declaration of Human Rights.
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Cables released by WikiLeaks show that other governments continue to have mixed responses to our antiterrorism financing efforts abroad, which in many respects resemble the domestic program described in this chapter. As summarized in a
New York Times
account,
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the cables show little evidence of significant financial support for terrorism in the United States, and greatest support in the Gulf states. Although the overall tone of the cables was described as pessimistic on this score, Treasury officials claim to have put Al Qaeda under significant financial pressure by pursuing sources and methods of terrorist financing in the Gulf region in particular. President Obama has maintained a conciliatory tone in public
toward Arab nations, but uses “many of the same covert diplomatic, intelligence and law enforcement tools as his predecessor.”
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Some other nations, like Kuwait, have found the evidence Americans present about particular charities “thin” and the responses the Americans propose—like shutting down a charity—“draconian.” In February 2010, the European Parliament suspended a program under which Americans monitored international banking transactions (through a Belgian banking consortium called Swift), relenting only when the United States agreed to allow greater European oversight. Opposition to American investigative techniques in Germany, where memories of the Stasi are still vivid, was especially strong.

Is the domestic side of this program worth it, given what we now know about the realities of terrorism financing? Bush’s economic sanction program was added to the already overbroad material support and forfeiture laws to provide redundant methods of attacking a domestic problem that may never have amounted to much. The benefits of this program are unclear; the costs are enormous—including incursions on many rights, a tremendous waste of resources on all sides, and alienation of people who could be our allies. There are dozens of ways in which this program could be tweaked to provide greater due process and greater accuracy, or conducted with more sensitivity to constitutional rights—like providing for hearings and limiting the ability of agents to intimidate law-abiding Muslims. A coalition of nonprofit groups lobbied for change in 2006,
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but succeeded in winning only minor modifications of the OFAC program.
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After years of observing congressional inertia in this area, a 2008 OMB Watch/Grantmakers without Borders report declared that the government’s focus on charities in its campaign against terrorist financing is simply unjustifiable.
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The report detailed the impact of the “short-term” response to terrorism in measures like the Patriot Act and the “long-term” consequences for the nonprofit sector, and called on charities to mobilize to seek change. In his 2009 Cairo speech, Barack Obama expressed his intention of working with Muslims to alleviate the hurdles to charitable donations.
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In August 2010, Muslim groups wrote to Obama to express their concern about how little progress had been made on this front.
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In December 2010, the members of the coalition gave up in frustration.

Is this entire program doing more harm than good? There are alternative legal tools available to prosecute charities or freeze their assets if the government actually has reliable proof of some sort of malfeasance. George W. Bush declared a state of “emergency” to allow the same results
without any of the due process. Are we really willing to let that emergency mind-set continue into a second decade and beyond? While Barack Obama would need Congress to fix the material support statutes, he could root out the cause of much of this campaign of fear and disinformation with a stroke of the pen—by revisiting Executive Order 13224.

4.
Traveling with Terror

We can’t just throw a bunch of names on these lists and call it security… If we can’t get an 8-year-old off the list, the whole list becomes suspect.
—Rep. William J. Pascrell, Jr. (2010)
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If they have that kind of difficulty with a member of Congress [not being allowed to fly because his name is on a No Fly list], how in the world are average Americans, who are getting caught up in this thing, how are they going to be treated fairly and not have their rights abused?
—Sen. Edward J. Kennedy (2004)
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No American should be forced to undergo a virtual strip search or subjected to such excessive groping of the body… when there is no suspicion of wrongdoing… To do so goes against every good and decent principle this country was founded upon.
—John Whitehead, Rutherford Institute (2010)
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L
IKE SENATOR EDWARD
Kennedy, most Americans have had their closest encounters with antiterrorism measures and watchlists at the airport. As Senator Kennedy told an astonished Senate Judiciary Committee in August 2004, he was at Reagan Airport planning to take the US Air shuttle from Washington to Boston when an agent told him, “We can’t give [the ticket] to you, you can’t buy a ticket.” When Kennedy asked why not, the agent replied, “We can’t tell you.”
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Kennedy reported having had the same experience on other occasions when he tried to board a plane to return to his job in Washington, D.C. Apparently “T. Kennedy,” a name that must be shared by thousands of Americans, was an alias that appeared on one of the watchlists airport screeners were required to consult.

If your name appears on the No Fly list, a blacklist, you will be denied a boarding pass and referred to law enforcement. If your name is on only the companion “Automatic Selectee” list, you will not necessarily be prevented from flying, but you will be subjected to extra screening, ranging from an
extra search to full-blown interrogation. At one point, the TSA received some thirty reports per day from the airlines of potential matches with the watchlists, most or all of which were false positives—identifications of people who were not actually suspected of being terrorists at all.
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How can you tell if you’re on a watchlist? You can’t. But one of the first signs is being told you have to see an agent to check in for your flight. According to the Department of Homeland Security, 99 percent of the people who complain of problems at the airport “are not on the terrorist watchlist, but are misidentified as people who are.”
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Small comfort to those who have to cancel or delay their travel plans because they have common names. The Transportation Security Administration (TSA) lists on its website as a “myth” that children are on the watchlist.
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But someone who shared a name with eight-year-old New Jersey Cub Scout Michael (“Mikey”) Hicks evidently was on the Selectee list. And so Mikey’s family learned to arrive early at the airport before every trip so that Mikey could be questioned, patted down, and even frisked before boarding. Anyone whose name appeared to be on the list was treated as suspicious. The Hicks family had a lot of experience with this ordeal. Special attention to Mikey began when he was two years old and persisted even on one occasion when Mikey’s mother (a photojournalist who had been cleared to fly with Vice President Al Gore) enlisted her Congressman to have a TSA agent run interference for her family at the airport. Both Mrs. Hicks and Congressman Pascrell expressed their bafflement at the fact that for seven years, it had not been possible to get Mikey, who was born less than a month before 9/11, cleared of suspicion so he could be spared this ordeal.

Before 9/11, there was a No Fly list, but it had only sixteen names on it. In December 2008, the master list from which the No Fly and Selectee lists are drawn contained 1,183,447 names.
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The size of the airport lists has fluctuated over the decade. The No Fly list apparently had about 20,000 names around the time Senator Kennedy was stopped.
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When Congress finally took an interest in the plight of innocent travelers, after the 2004 Judiciary Committee hearing at which Senator Kennedy stole the show, that list was reduced to about 3,400. But after the Christmas 2009 incident involving Nigerian air passenger Omar Abdulmutallab, who was discovered in a plane heading for Detroit with explosives in his underwear, the number went back up, almost doubling within a few months with the prospect of additional increases.
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These watchlists—now proliferating beyond the airport, affecting Amtrak and cruise ship passengers too
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—present a dramatic example of just
how challenging it can be to strike a balance between the desire for dragnets to catch the guilty and recognition of the harm they cause the innocent. The larger the number of names on the list, the more likely the list is to include actual terrorists—and also to include innocent Americans who will have their travel plans and their constitutional rights disrupted. Timothy Healy, Director of the Terrorist Screening Center, which administers the master list, assured Congress that in deciding how to strike that balance, “privacy is protected and civil liberties are safeguarded throughout the entire watchlisting and screening process.”
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Healy also told Congress that there would inevitably be mistakes in deciding what names to place on the lists: “[T]hese people are identified by fragments of information. They’re identified by a source saying ‘this guy’s involved in it.’ So it’s not a black and white system.”
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Just trusting the FBI to strike its own balance in secret, with no due process for those swept up in the enterprise and with little real accountability or oversight, sets the stage for both constitutional violations and ineffectual security measures. But government agencies prefer to make their own decisions in secret so they won’t be second-guessed by anyone. It is typical of post-9/11 thinking for officials to want space to err on the side of overinclusion, and it is simply human nature for people to believe that they can be trusted not to make mistakes.

But from the beginning, the watchlists were riddled with errors. Documents released in response to an ACLU Freedom of Information Act lawsuit in 2003 showed that watchlists were being generated long before any coordinated policy or criteria for selecting names had been developed.
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A March 2008 Inspector General report found those same problems had persisted—the “nomination” process still lacked adequate coordination and criteria—and expressed concern about the accuracy of the lists.
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A follow-up May 2009 report by the same Inspector General, studying the nominations themselves, showed that accuracy was indeed a very serious problem: procedures for reviewing nominations of people who were not already subjects of FBI investigations were “weak or nonexistent”; in 78 percent of cases, nominations to the list were not timely and sometimes were based on outdated or simply incorrect information; the list was over-inclusive but also underinclusive, as people who should have been placed on the list (like the underwear bomber) were not. At the same time, the FBI failed to remove names of cleared people in a timely manner in 72 percent of cases, despite the fact that the 2004 Congress had instructed the agencies involved to create a system to enable innocent people to get off the list and the agencies had publicly announced that their lists had been scrubbed clean.
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