Terror On Board

Civil-liberties Extremists Partly To Blame

December 31, 2009|By Gabriel Schoenfeld

The case of the alleged Christmas bomber is being called a massive intelligence failure. And the evidence thus far does suggest a possible lapse in the government's management of terrorist watch lists.

But if so, the blame doesn't lie wholly with government agencies charged with maintaining the lists. Some share of responsibility lies with civil libertarian extremists who have ceaselessly lambasted the entire no-fly system.

Maintaining a terrorist watch list is highly complex. The problem includes not only assembling a list of potential suspects but distributing the information to visa offices, border checkpoints, cargo facilities and the like in a timely fashion. The correct spelling of foreign names is in itself a highly complicated endeavor. Criteria for inclusion on a list must be established. And then there is the difficulty of training agents, many of them with little understanding of the nuances of places such as Yemen and Nigeria.

Umar Farouk Abdulmutallab's name was added to a government list of people with suspected ties to terrorism in November. He was not, however, on the far shorter no-fly list maintained by the FBI, which is why he was able to board without apparent problem the Northwest Airlines flight bound for Detroit. Timothy J. Healy, director of the FBI's Terrorist Screening Center, told a Senate committee in early December that the consolidated watch list maintained by the FBI consists of about 400,000 names, but only about 3,400 of these have been placed on the no-fly list.

A Justice Department audit last spring found numerous flaws in the terrorist watch system. As new information flows in to the FBI, it is required to update the lists. Yet according to the audit, in 67 percent of the cases it sampled, "the FBI case agent primarily assigned to the case failed to modify the watch list record when new identifying information was obtained during the course of the investigation, as required by FBI policy."

The complexity of the watch list process guarantees significant major errors. On one side lies the problem of innocent people finding themselves on the list. On the other side lies the problem of alleged terrorists being allowed to fly. Given the nature of the dangers that the lists are designed to avert, a reasonable policy would tilt toward over-inclusiveness.

Here is where the political context becomes critical. The Bush administration was subjected to withering criticism for the way it managed the no-fly list. The American Civil Liberties Union put the system on its own list of the "Top Ten Abuses of Power Since 9/11." In one of several lawsuits the group has filed involving terrorist lists, the ACLU alleged that they "violate airline passengers' constitutional right to freedom from unreasonable search and seizure and to due process of law." U.S. Sen. Patrick Leahy, a Vermont Democrat and chairman of the Senate Judiciary Committee, has been one among a chorus of voices that accused the former administration of being far too sweeping.

The Department of Homeland Security has indeed received a high volume of complaints about airport screening by individuals attempting to travel. Yet only 0.7 percent of the complaints stemmed from issues relating to the watch lists. Whatever problems exist, the system is not outrageously over-inclusive. Indeed, if anything, the opposite is the case.

We will never know whether fierce criticism from the left had any direct effect on the processing of Mr. Abdulmutallab's file, but the political environment is important to consider going forward. The officials managing the watch lists are not eager to be hauled before a congressional committee if they blunder and bar innocent people from getting on flights. But they are also acutely aware of the potential price tag of being under-inclusive.

The problem with over-inclusiveness is that innocent people will suffer major inconvenience and that counter-terrorism resources are wasted. But if the lists are under-inclusive, innocent people can die, and in large numbers. If asked to choose between over- and under-inclusiveness on the watch lists, the passengers of Northwest Flight 253 no doubt would have their preference.

Gabriel Schoenfeld, a senior fellow at the Hudson Institute, is the author of "Necessary Secrets: National Security, the Media, and the Rule of Law," due out in 2010. This article originally appeared in the Los Angeles Times.

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