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Should the government need reasonable suspicion for watch lists?

| Oct 25, 2018 | Criminal Defense |

Should the federal government be able to add you to a terrorism watch list just because of your religion? Because you bought a computer at Best Buy? After you waited at a train station for your mother? Shouldn’t you have to have done something suspicious before you’re placed on a government list that keeps you from flying or traveling abroad?

That’s the question recently put to the 9th Circuit Court of Appeals. Five California men sued the federal government after they were apparently placed on a terrorism watch list for non-suspicious activities like those described above. Their placement on this watch list led them to be questioned by police despite having done nothing wrong.

Primarily, the men argue that the National Suspicious Activity Reporting Initiative (NSI) flags people as potential threats without reasonable suspicion of criminal activity, which they say violates a longstanding rule requiring reasonable suspicion before intelligence can be collected on Americans.

How the NSI works is that state and local police submit “suspicious activity reports” about people in their jurisdictions. These reports are then analyzed using a “functional standard” that defines suspicious activity as “observed behavior reasonably indicative of pre-operational planning related to terrorism or other criminal activity.”

The government argues that suspicious activity reports are not the product of an investigation meant to result in criminal prosecution, so they don’t count as the type of intelligence that requires reasonable suspicion?

That said, innocent behaviors such as being a member of a certain religion, shopping at Best Buy or waiting for a parent’s train are presumably not activities that would meet the functional standard. How did the California men end up on a terrorism watch list for these activities?

One theory is that unjustified suspicious activity reports were submitted by state or local law enforcement. Since no suspicious activity was actually contained in the report, the NSI should presumably have rejected the reports and left the men off the watch list. Further, the FBI, which runs the NSI, could have sanctioned the state or local agency for submitting false reports.

The California men wanted to know if the FBI had ever sanctioned a law enforcement agency for violating NSI rules, but they were not allowed to ask the FBI about how it enforces NSI rules. The men’s attorneys urged the 9th Circuit to send the case back to the trial court for discovery on the issue.

What should happen when people are placed on the terrorism watch list for engaging in perfectly ordinary, innocent activities? Shouldn’t the government need at least reasonable suspicion before it blacklists people?