
The Secret Government Rulebook For Labeling Someone a Terrorist - forsaken
https://firstlook.org/theintercept/article/2014/07/23/blacklisted/
======
simonsarris
I suspect many onlookers are going to misunderstand the intent of the rules
that fill rulebooks like these. I suspect this because of ChuckFrank's comment
which identifies problems and proposes solutions, as all we hackertypes
instinctively do.

The thing is, when they say:

> create a 'nomination', 'verification' and 'implementation' process with
> their “originators,” “nominators,” “aggregators,” “screeners,” and
> “encountering agencies.”

And we all reel in horror at how bad this is procedurally, we must remember
that they are not doing this to determine terrorists. They are doing this
because if they do put people on lists and need to watch them (for whatever
reason), and end up being very wrong, they need to diffuse the damage to
organization level (which cannot be held accountable) instead of individuals.

In other words, its not about codifying who is a suspected and actual
terrorist. It's about internal damage control so that no individual can be
blamed when something goes wrong. I'm not sure the US Gov is _entirely_ at
fault here, at least not in a actually-tring-to-be-sinister sense. I think
that most large businesses end up with these same processes for the exact same
reasons. The only difference here is the topic, which is creepy as hell. But I
think its working as intended.

(Business example: General Motors deadly ignition switch recall[1]. Their
processes are set up to shift blame, not to locate discrete problems that
trace back to discrete decisions.)

This is why Khalid El-Masri (See qeorge's comment) can never face his accuser.
He was accused by aggregate.

It's processes determination by firing squad.

[1]
[http://en.wikipedia.org/wiki/2014_General_Motors_recall](http://en.wikipedia.org/wiki/2014_General_Motors_recall)

~~~
ChuckFrank
Your point is excellent. It's not that this process is created in error. The
process is created to 'diffuse the damage to an organizational level - which
cannot be held accountable.'

Still I think that aside from gross incompetence or negligence, as a society
we understand that people make mistakes such as prosecutorial error, and we
have systems in place to deal with them (more or less).

And yes, the problem is that here, as with problems in the criminal justice
system, it's not only creepy as hell, but it also undermines the optimal
functioning of a system. Resources get mis-allocated, contributing members of
society get impeded, justice is denied, power differentials are exacerbated,
etc.

Transparency, equitability, justice those are all essential components to a
great society, both in terms of functioning and in terms of ethics - and we
should be doing the work to make it happen. Here's another opportunity to do
so.

Great point though.

------
adityab
Two things are very noteworthy in this:

Page 9 (concerning the definition of "terrorism"): > _1.14.1 involve Violent
acts or acts dangerous to human life, property, or infrastructure_

 _Property_? Tell me this is not a deliberately broad definition intended to
be used against inconvenient persons.

Page 22: > _1.51 In determining whether an individual is a KNOWN or SUSPECTED
TERRORIST, NCTC will rely on the designation of "KNOWN TERRORIST" provided by
the NOMINATOR as presumptively valid._

 _Presumptively valid_. Let that sink in for a moment. It could not be put in
clearer terms that a targeted person will be _assumed guilty until proven
innocent_. This is a basic perversion, no, inversion, of due process and the
justice system.

EDIT: The OCR'd version of the document and the original have significant
textual differences. Updated.

~~~
anigbrowl
Pulling individual sentences out of their context tends to be misleading.
Editing the cherry-picked parts is virtually guaranteed to be misleading.

Here, you omitted the phrase 'known terrorist' from the middle of the sentence
you quote on page 22. This totally changes the meaning of the quoted sentence.
Also, you chose not to include the following sentence which described how such
a presumption could be overcome if the investigative body in question had
credible information to the contrary. Finally, you overlooked the fact that
'nominators' in this context refers to other government agencies, relying on
existing procedures for designation of someone as a 'known terrorist', and
that said procedures form the due process in question. The point of this is to
avoid bureaucratic duplication and waste. If the FBI sends the NCTC someone's
bio and states them to be a known terrorist (based on facts in said bio), then
it's entirely reasonable for the NCTC to take the FBI's information at face
value unless it receives information to the contrary.

Such designation is presumptively valid in that situation because the FBI
itself is subject to law. If different agencies of the executive branch are
required to reject each others' conclusions by default and investigate every
assertion _de novo_ the outcome would be ontological paralysis. At such time
as someone is detained and charged with terrorist the matter is handed over to
the judicial branch, where a court serves the role of finder of fact.
Essentially, you're demanding that trial precede investigation.

~~~
adityab
> Here, you omitted the phrase 'known terrorist' from the middle of the
> sentence you quote on page 22. This totally changes the meaning of the
> quoted sentence.

Ah, damn. The "text" version of the page which I tried to read does not
contain that phrase at all. Bad OCR, I guess. :/ In any case, I do not see how
it significantly alters my indignation at it; if some 3-letter agency decides
to _wink, wink_ _nudge, nudge_ and label an inconvenient person as a known
terrorist as per the aforementioned broad definitions of the word, that person
is likely screwed.

> Also, you chose not to include the following sentence which described how
> such a presumption could be overcome if the investigative body in question
> had credible information to the contrary.

That subsequent sentence adds _absolutely nothing_ that is contrary to what I
pointed out. It only says that the investigative agency has the power to judge
someone as guilty, but also to later change it's mind if it finds evidence of
non-guilt. It can blacklist me. It can remove me from the blacklist if it so
chooses, but I don't care about that, I do care that it can blacklist me
though. Therefore I do not see how not including that sentence changes the
meaning in any way, let alone 'totally'.

> Finally, you overlooked the fact that 'nominators' in this context refers to
> other government agencies, relying on existing procedures for designation of
> someone as a 'known terrorist', and that said procedures form the due
> process in question.

Procedures, procedures, procedures...

My purpose was to highlight that nowhere in this thing that you call "due
process" is a judge or the target kept in the loop. Just the existence of a
"process" does not mean that it is _due process_

> Such designation is presumptively valid in that situation because the FBI
> itself is subject to law.

You seem to be assuming that if there is a process, it is due process. If an
agency is officially subject to law, it will never act contrary to law.

> Essentially, you're demanding that trial precede investigation.

Not exactly... I'm demanding that they get a warrant. Getting a warrant !=
having a trial.

~~~
anigbrowl
Please consider reading my response again, as I think you're misunderstood
several of statements at a grammatical level.

 _My purpose was to highlight that nowhere in this thing that you call "due
process" is a judge or the target kept in the loop. Just the existence of a
"process" does not mean that it is due process_

But 'due process' does not just mean 'judicial process'. It includes
administrative process, which is what the executive branch does. Indeed, it's
not uncommon for courts to dismiss suits on the basis that a plaintiff has
failed to exhaust his or her administrative remedies, ie has not run into a
brick wall in dealing with the bureaucracy, resulting in a legal controversy.

Regarding the warrant vs. trial - reasonable enough, but the fact remains that
warrants are only issued subject to probable cause,and probable cause can only
be established by investigation. It seems to me that you're demanding that
government agencies get a warrant in order to open an investigation at all.

------
qeorge
Here is one example where sloppy watch list policies like these resulted in
the prolonged torture of an innocent person:

[http://en.wikipedia.org/wiki/Khalid_El-
Masri](http://en.wikipedia.org/wiki/Khalid_El-Masri)

~~~
madaxe_again
Enhanced interrogation techniques, you mean. Everybody knows the us gov would
never torture anybody. Just enhance them. With interrogation.

------
DINKDINK
Some ludicrous statistics: "In a recent court filing, the government disclosed
that there were 468,749 KST nominations in 2013"

The government is saying that there are ~1,500 known or suspected terrorists
per million population. Or in other words, the city of San Francisco is home
to ~1,250 known or suspected terrorists. or to put it another way. That there
are 1 known or suspected terrorists every 3 city blocks in San Francisco
468749/313.9e6 _837442 /(46.87/(636.5_581/5280 __2))

~~~
HillRat
Technically, it's more like 167 terrorists per million. The TSDB is a global
database that is a subset of TIDE plus domestic names. TIDE is probably about
1/3 again larger than TSDB, with news reports pegging TIDE's size at about
875,000 names. If we assume that terrorists (or, as the source document likes
to term them, "TERRORISTS") are confined to persons over the age of 15 (only
true in the general case, I'm sad to say), then the database contains .017% of
the targeted world population.

An interesting question is whether TSDB and TIDE can even actually track the
majority of militants worldwide -- for example, your average ISIS fighter or
Donetsk militiaman, as opposed to terrorists seeking to carry out attacks in
non-combat areas. The idea that there are 875K al-Qa'ida-style terrorists
working worldwide wouldn't pass the laugh test with most analysts. Consider
that ISIS, which is either a very large terrorist group or a very small
conventional army, has a personnel list somewhere between 10K and 20K, and the
Pakistani Taliban is thought to have between 5K-10K fighters. The size of the
TSDB, even if it were a strict superset of _all_ actively anti-American
terrorists and militants in the world, is likely an order of magnitude too
large.

~~~
DINKDINK
Good counter point. I assumed all KSTs were US citizens. As far as I'm aware,
that probability isn't divulged.

~~~
HillRat
According to news reports, about 5% of names in TSDB are AMCITS or LPRs,
though it appears that share may be rising relative to the overall growth of
the list.

------
sneak
I posted this a few days ago, but I will repost it here:

If they are terrorists (criminals) and the government is not prosecuting them,
the government is breaking the law.

If they are innocent of wrongdoing (not terrorists) and the government is
depriving them of rights afforded to others, the government is breaking the
law.

~~~
revelation
That's the irony here. If they put you on the terrorist list, it's decisively
because you are not actually a terrorist; the various travel restrictions
would just instantly alert you to the fact that they found out about you.

So the real terrorists don't end up on the list.

~~~
anigbrowl
Faulty logic.

------
ilaksh
Please take a look at the actual history and contemporary use of government
watchlists. This is not about terrorism. Its about suppressing dissent and
consolidating power.

People don't want to believe it, they want to think their government is only
motivated to help them. But the reality is that we absolutely must compare
this situation to the one in East Germany with the Stasi.

------
socrates1998
"First they came for the Socialists, and I did not speak out— Because I was
not a Socialist. Then they came for the Trade Unionists, and I did not speak
out— Because I was not a Trade Unionist. Then they came for the Jews, and I
did not speak out— Because I was not a Jew. Then they came for me—and there
was no one left to speak for me."

\- Martin Niemöller

~~~
mpnordland
Godwin's law comes true alarmingly quickly on HN.

~~~
sroerick
You know, I'm increasingly becoming very disenchanted with Godwin's law.

I think that Nazis are a great study and we should compare as many things as
possible to them, as a cautionary tale.

I understand that "Nazi!" gets thrown around heedlessly, but I'm suspicious of
any retorical device whose job is to tell you when to stop thinking.

~~~
krapp
But to be fair, most attempts to analogize Nazism and Hitler _are_ intended to
stop you from thinking and stifle debate. Once someone claims that, for
example, the US government is the modern analogue to the Nazis and _they 'll
come for you soon, dear hacker, the way they came for the Jews_ then they're
saying that, as far as they're concerned, anyone who would suffer further
debate about the issue is defending an absolute and irredeemable evil.

Or they're just engaging in paranoid, thoughtless hyperbole. Either way, it
isn't helpful.

------
phkahler
>> Obama hoped that his response to the “underwear bomber” would be a turning
point. In 2010, he gave increased powers and responsibilities to the agencies
that nominate individuals to the lists, placing pressure on them to add names.

That part bothers me the most. By telling agencies to add names to the list,
you don't automatically get more bad guys, you're just going to get more
people on the list. A fair question would be "how much do we need to expand
our scope to where we would have listed a certain person known to be a bad guy
that slipped through?" And of course one data point isn't really terribly
relevant, but the answer to the question may be enlightening - or not.

~~~
bjlorenzen
It's even more confusing that Obama would push for more names to be added when
the article clearly states that the underwear bomber was already on the list:

>...after a Nigerian terrorist was able to board a passenger flight to Detroit
and nearly detonated a bomb sewn into his underwear despite his name having
been placed on the TIDE list...

------
lucb1e
> It also allows for dead people to be watchlisted.

That actually makes great sense as identity spoofs, or at least that's what I
read in Kevin Mitnick's Ghost in the Wires, are most easily done under the
name of deceased infants near your own year of birth.

~~~
outworlder
Indeed. A deceased person flying should raise red flags everywhere.

~~~
smnrchrds
I've heard before that people had problems getting on a plane because they had
the same name as someone on the no-fly list. It would be really frustrating if
they want to question everyone at the airport if they have the same name as a
deceased person.

~~~
lucb1e
Yeah that's a confirmed thing to happen (as the article mentions, in 2004 a
senator's name looked like a terrorist's and the senator noticed), but I'm not
sure the name is the only thing that makes a deceased person deceased. I mean,
they'd probably include the DoB and birthplace and such things, which makes it
more unique. At least, I'd hope so.

~~~
tacticus
Your hope is misplaced. For if they do include the DOB they certainly ignore
it.

[http://www.nbcnews.com/id/10725741/ns/us_news-
security/t/-ye...](http://www.nbcnews.com/id/10725741/ns/us_news-
security/t/-year-old-turns-government-no-fly-list/)

------
KhalilK
Link to the original pdf
[http://s3.documentcloud.org/documents/1227228/2013-watchlist...](http://s3.documentcloud.org/documents/1227228/2013-watchlist-
guidance.pdf)

~~~
dublinben
Thanks for the direct link. It was pretty frustrating that they weren't making
it easy to download.

------
ChuckFrank
What is really interesting about this document is that they are trying to
create the rule book for determining suspected and actual terrorists. This is
not an easy task.

This is why they create a 'nomination', 'verification' and 'implementation'
process with their “originators,” “nominators,” “aggregators,” “screeners,”
and “encountering agencies.”

But the problem comes down to the actual facts. This document does a terrible
job of separating a process design - First a candidate gets originated by an
originator, who passes that said candidate on to a nominator, etc - from the
basic factual requirements needed to become listed as a suspected (or actual)
terrorist. (Though the latter would seem easier to determine.)

What is really needed is a clear set of factually determined checks to show
that someone is indeed a suspected terrorist. Not a process design that
creates a structure towards watch list inclusion.

In design this is often a problem. It's a very common mistake. Teams,
Companies, Professionals design a process, but not the necessary, required
steps - and everything just gets lost in that process, especially when
everything takes place according to the plan.

Here's what the watch list needs. A list that triggers inclusion.

If a appears to have done x, y or z, a get's "originated." If x, y, and z are
verified, a gets nominated. At this point counter rationales for x, y and z
must be presented to excuse the suggestion of terrorism when there is none.
Etc.

What is important are the verifiable X, Y and Z actions. That's what a
document of this type should present.

Now I know that the response is that if people are told how they get onto a
watchlist, they will try to avoid those tasks while maintaining their
terrorist agenda, thereby avoiding being categorized as a suspect.

But isn't that the point, don't we want people to not engage in pre-terrorist
activity, like going to a training camp in Afghanistan, or sending money to
organizations who have actively taken responsibility for civilian bombings.
Isn't that the point?

Getting people to be classified as suspected terrorists is not what a
watchlist should be about. A watchlist should be about commonly agreed upon
actions that as a society we do not support, and we can change our minds about
what we do and do not support over time.

Then the watchlist can be public, those on the watchlist can be public, their
reason for being on the watchlist can be public and we can decide - together-
who should and should not be on a watchlist.

We already do it with criminals. Why is this process any different?

Criminals can be just as deadly and corrupting to our society, but yet we've
figured out a way (to some degree) to deal with them. We should be able to do
the same with Terrorists.

A new process is possible, one that will in fact make us, and everyone safer.
This method is not that process. Or at least that is my opinion.

~~~
anigbrowl
There's an exhaustively detailed exploration of the standards for inclusion
from page 33-49 which seems to me to be a set of lists (of activities,
memberships in proscribed organizations, relationships with publicly
sanctioned individuals etc. etc.) that trigger inclusion of the sort you are
asking for.

There's also extensive guidance over who should _not_ be included and when
people should be removed from such lists. I can't help feeling tat most of the
commenters here are stating their assumptions about the document's content
without giving it even a cursory reading.

 _Then the watchlist can be public, those on the watchlist can be public,
their reason for being on the watchlist can be public and we can decide -
together- who should and should not be on a watchlist. We already do it with
criminals. Why is this process any different?_

We don't publish lists of suspected criminals. For many offenses requiring
procedural steps prior to arrest and charge (eg presentment to a grand jury
which returns an indictment), the process is _not_ public, mainly to preserve
individuals' rights.

~~~
spott
>There's an exhaustively detailed exploration of the standards for inclusion
from page 33-49 which seems to me to be a set of lists (of activities,
memberships in proscribed organizations, relationships with publicly
sanctioned individuals etc. etc.) that trigger inclusion of the sort you are
asking for.

Not really. pp. 47-49 contain examples, and prior to that, there is no
specific behavior for "Reasonable Suspicion", which is probably the catchall
for putting regular people on the watch list. The "Known Terrorist" and
"Suspected Terrorist" sections contains specifics, but you don't have to be
either of those to be put on the TSDB. You do have to have "Particularized
Derogatory Information" which is specific information relating you to known
terrorists or suspected terrorists. However this requirement is not expanded
upon (that I can see).

The section that talks about how people should be removed from the list is
short (less than a page), and basically says "we should look into it if
someone complains". There is no mention of court procedures, there is a single
point of contact (the DHS TRIP), and there are procedures that seem to
basically amount to "look again". There is no requirement for disclosure of
what put you on the list, and thus no means to effectively fight it.

I realize why you are complaining about people not doing a "cursory reading",
but the fact is, a cursory reading can support as many false statements as
just reading the article. It also gives a false sense of security in your
beliefs. I can't be 100% sure of my statements above because I haven't read it
fully, but I'm more sure of them than of your statements.

~~~
anigbrowl
Maybe you should try looking at pages 37-42 which defines 13 different
categories of suspected terrorists. I fail to see why you don't think this is
relevant.

 _The section that talks about how people should be removed from the list is
short (less than a page), and basically says "we should look into it if
someone complains". There is no mention of court procedures [...]_

That's because this is _administrative_ guidance. The executive branch isn't
part of the judicial branch. Agencies don't make rules about court procedure,
the judiciary does. You're conflating two completely separate branches of
government.

\--

Let me give you a super-quick civics lesson on US government, just so we're on
the same page.

The _Legislative_ branch consists of the House & Senate, aka Congress. The
main thing it does is produce _Statutory Law_.

The _Executive_ branch is headed by the President and includes all the various
agencies of government. Agencies which are tasked by Congress with carrying
out various tasks are required to promulgate rules and establish internal
procedures (such as guidance in the implementation of the rules) for their own
governance. These rules and procedures make up _Administrative Law_.

The _Judicial_ branch resolves controversies between other branches of
government, between the states and the federal government, and so on. Court
decisions can cite statutory law, administrative law (if the case involves the
operations of a government agency), common law (loosely, a set of legal
traditions), and precedent established by higher courts. New precedents are
sometimes referred to as _judicial law_.

\--

Now, statutory law might define which matters fall within the purview of the
courts, and there's a great deal of judicial law addressing how legal disputes
should proceed through the courts, but I wouldn't expect to find such things
discussed in an agency guidance document. Obviously I'm only describing the
very tip of the legal iceberg here, but there seem to be some very basic
misconceptions in this thread about how the government functions.

~~~
spott
>Maybe you should try looking at pages 37-42 which defines 13 different
categories of suspected terrorists. I fail to see why you don't think this is
relevant.

Because you don't have to be a Suspected Terrorist to be put in the TSDB.
Which means that there are a whole host of things that aren't on those lists
that can land you in the TSDB.

>You're conflating two completely separate branches of government.

No, I'm really not. "court" is not unique to the judicial branch, for example,
courts-marshal are conducted within the military and not under the judicial
branch.

>That's because this is administrative guidance.

Yes, which means that there should be better policies in place to keep this
out of the judicial courts.

~~~
anigbrowl
There are things that are not on those lists. They're eithe ron other lists,
or must meet defined criteria which are subject to administrative review.

 _> You're conflating two completely separate branches of government. No, I'm
really not. "court" is not unique to the judicial branch, for example, courts-
marshal are conducted within the military and not under the judicial branch._

Well, that's bullshit. Sometimes you just have to own your mistakes, my
friend.

------
suprgeek
From section 3.9:

"...some activities conducted by U.S Persons or activities taking place inside
the United States, maybe an exercise of rights guaranteed by the First
Amendment"

So you will be put on a punitive list even after the govt. itself clearly
recognizes that you are only exercising your first amendment rights.

There is clearly something very wrong here...

~~~
anigbrowl
The _very next sentence_ says 'Watchlisting an individual for engaging solely
in constitutionally protected activities is prohibited.' The paragraph goes on
to talk about the critical importance of considering information in its proper
context, something you might want to work on yourself.

------
daveslash
This is not the Terrorist Watch-list, but I found it interesting nonetheless.
I found this while taking a training course for my large-corporate employer.
It's a list of persons & organizations with whom my (or any) American employer
is forbidden from doing business.

[http://www.treasury.gov/ofac/downloads/sdnlist.txt](http://www.treasury.gov/ofac/downloads/sdnlist.txt)

While reading,... [FTO] = Foreign Terrorist Organizations Sanctions
Regulations, 31 C.F.R. part 597 --- [SDT]​ = Terrorism Sanctions Regulations,
31 C.F.R. part 595​ --- [SDGT] = Global Terrorism Sanctions Regulations, 31
C.F.R. part 594​ (full list of tags here [http://www.treasury.gov/resource-
center/sanctions/SDN-List/P...](http://www.treasury.gov/resource-
center/sanctions/SDN-List/Pages/program_tags.aspx))

------
tunesmith
It's interesting reading the first few paragraphs and mentally swapping out
the "terrorist" concept for something like "bad risk for auto insurance". You
could describe insurance systems with so many of the same adjectives - one
damning factor wouldn't be enough to label you a bad risk even if several
small factors might. Why do we insist on a clear definition for who should or
shouldn't be on a watch list when it might actually be a complicated question
of probability with many different factors?

~~~
morgante
> Why do we insist on a clear definition for who should or shouldn't be on a
> watch list when it might actually be a complicated question of probability
> with many different factors?

Because insurance companies can't detain you.

------
rdtsc
> They also define as terrorism any act that is “dangerous” to property and
> intended to influence government policy through intimidation.

By that logic our founding fathers are one of the most dangerous and evil
terrorists. Acts that are dangerous to property? [check]. Trying to influence
government policy [check]. They would be sent to Gitmo and watertortured 3
times per day.

~~~
joshfraser
Of course, the US government themselves would never hurt anyones property or
try and influence government policy.

------
AwesomeTogether
Funny timing

How to get on the government watchlist? How to get followed on Twitter by
@the_intercept?

there was a story about the latter posted on Hacker news earlier today
[https://news.ycombinator.com/item?id=8075384](https://news.ycombinator.com/item?id=8075384)
)

------
madaxe_again
So, if influencing government policy is terrorism... what does that make the
government, and corporations, who by far and above "influence policy" more
than any other group?

~~~
anigbrowl
Except that influencing government policy isn't terrorism, unless it involves
intimidation or coercion, or assassination/ kidnapping/ bombing....

~~~
madaxe_again
Soooooo drones and illegal wars?

------
jacquesm
Maybe they should start using a whitelist? That would seem to be more
productive.

------
davidcollantes
Misspelled information (informaiton) twice?

------
infogulch
Rule #1: Anyone reading this rulebook.

~~~
dmix
This is the chilling effect in action:
[https://en.wikipedia.org/wiki/Chilling_effect_(law)](https://en.wikipedia.org/wiki/Chilling_effect_\(law\))

~~~
coldcode
Rule #2, anyone reading about someone with the rulebook.

~~~
infogulch
Rule #3: anyone reading about anyone reading about someone with the rulebo--.
Screw it, a few more rules and we can approximate this whole mess by using the
'degrees of separation' theory:

EVERYONE'S A TERRORIST.

~~~
madaxe_again
Anyone suspected of being suspected to having known someone suspected of being
suspected of reading the rulebook, you mean. Don't be so restrictive. Once
we're all designated terrorists, nobody's a terrorist.

Once you take everything from a man, that man is no longer in your power...

~~~
infogulch
> Once we're all designated terrorists, nobody's a terrorist.

Nope, once we're all designated terrorists then prosecution becomes completely
arbitrary and can be carried out with impunity and complete disregard for all
rights "bcuz terrorist!".

------
stinkfruit
They start by labeling the entire potential populous "terrorists", and work
backwards, never actually taking them off the list.

~~~
cruise02
When you exaggerate a problem to such a ridiculous extreme, all the other
party has to do is say "Oh no, we don't do that at all. Problem solved." This
isn't productive. In fact, it's counter productive. Now all they have to say
is "See the lies people tell about us? They're not interested in a rational
debate at all. We're just going to carry on with business as usual."

