Many of you have asked in the threads how a particular person gets put on a terrorist watch list. I didn’t know the answer, at least not with any specificity. Today I got my hands on an audit report issued by the DOJ-IG entitled Audit of the U.S. Department of Justice Terrorist Watchlist Nomination Process.
I finally have answer for you (yay), but I don’t think you’re going to like it (boo).
First some background basics:
There are two basic categories of terrorists that are used in this process, domestic terrorists and international terrorists. There are two basic kinds of "subjects" (that’s people in layman’s terms), investigative subjects and non-investigative subjects.
Subjects of any stripe are "nominated" to be on the watchlist. Like it was some kind of honor. There are three major permutations of this nomination process. I’m going to list them in ascending order of how likely they are to make our blood boil. Remember, don’t yell at me, I didn’t make these, ahem, rules up.
1) Nominations of Investigative Subjects, International Terrorism.
In general, individuals who are subjects of ongoing FBI counterterrorism investigations are nominated to TSC [the FBI’s Terrorist Screening Center] for inclusion on the watchlist, including persons who are being preliminarily investigated to determine if they have links to terrorism. FBI policy requires the responsible case agent to forward a complete nomination package to the Terrorist Review and Examination Unit (TREX) in FBI headquarters. This package should include an initial case opening electronic communication, a copy of a notice of initiation that is directed at DOJ headquarters, and an FBI watchlist nomination form [form FD-930].
For international terrorist nominations, TREX reviews and approves the nomination and forwards it to the National Counterterrorism Center (NCTC) which is a component of the Office of the Director for National Intelligence (ODNI). NCTC reviews and approves it and sends it on to the FBI’s Terrorist Screening Center (TSC).
2) Nominations of Investigative Subjects, Domestic Terrorism
The process is almost identical to the above, except that they skip the review by ODNI because there is no international information for them to review. The nomination goes directly from TREX to the TSC.
For nominations involving categories 1 and 2, the DOJ IG found that the nomination packages produced by the case agents were not usually being reviewed for completeness or accuracy by their bosses. Understand in the FBI there are written procedures for everything and almost everything an agent does gets reviewed by at least one (and often lots more than one) layer of bosses. So, the idea that these are going directly from a case agent (the lowest agent on the totem poll) directly to TREX without review, naturally provoked negative comment from the IG.
Because of this lack of basic oversight, the IG found that sometimes nominating packages were not even sent by the case agent until up to 4 months AFTER the case was opened. Other packages were so incomplete that TREX could not approve and pass them on in a timely manner. Bad guys walking around NOT ON THE WATCHLIST for months during the investigation. Bad guys slipping through the cracks.
Worse, under the provisions of Homeland Security Presidential Directive-6 (HSPD-6), each nominating agency involved (in addition to FBI, DEA, ATF a whole host of other alphabet soup agencies could be nominating agencies but they have to go through the FBI) is supposed to update the list on an ongoing basis, either by adding new/better information as it comes into their possession or by REMOVING people when it is determined no nexus to terrorism exists.
FBI’s policies include requirements for updating and removing watchlist records and even says that it is "essential" that this housekeeping activity be done. Watchlist revisions use the same procedure as watchlist nominations. However, NCTC says that they see very few modification requests from FBI and FBI admits that "the modification of watchlist records is not being performed on a regular basis."
So, once you’re on, unless somebody actually finishes ALL the closeout work for the investigation (I have never seen an agent who jumped to do closeout work), once you’re on, you are likely to grow moldy sitting on the list. Both TREX and TSC personnel told the IG that they believed that "often individuals inappropriately remained watchlisted because the case agents did not file the paperwork necessary to effect their removal."
I’m going to skip over all the findings about just plain errors and redundancies (so if you get put on the list 3 times and only get removed once, yep, you’re still on the list).
3) Non-Investigative Subjects, International Terrorism
In addition to nominating people who are actually the subject of an open FBI criminal terrorism investigation, you know, with an open case file and all, FBI also has a formal process for nominating known or suspected international terrorists who are not the subject of FBI investigations. (Remember, I didn’t make these rules, I’m just relaying them to you, stop throwing tomatoes at me!)
In order to nominate a person who is not the subject of an open case file or PI, the entity wishing to nominate the person must send a memorandum to the FBI Counterterrorism Division containing information supporting the nomination. If the Counterterrorism Division thinks the memo has merit, it submits the request to NCTC to nominate this person.
However, there is no mechanism or procedure for modifying the information or for removing the person from the watchlist. There also are no defined quality control procedures to describe what needs to be in this memo, unlike #’s 1 and 2 above which have written defined quality control systems.
Even worse, when the IG’s office interviewed folks in the Counterterrorsim Division about this process, they said they had not received ANY such nomination requests. It turns out that field agents were forwarding these requests directly to NCTC and there was no paper trail for the bosses to even know that it was done, no tickler system to make sure the information on these names is ever updated, and nobody but the agent who put in the request who might even be aware that a particular name was put on the list in this fashion.
The weaknesses described above indicate that the potential exists for watchlist nominations to be inappropriate, inaccurate, or outdated because watchlist records are not being appropriately generated, updated or removed as required by FBI policy.
Ok, for those of you with high blood pressure, you might want to take a reading before deciding if you want to read further (and I must take a moment to don my riot gear because the throwing of rotten vegetables is escalating and I think there may be a few actual rocks in the mix) .
Remember I told you that the other alphabet soup agencies (including Interpol) had to go through FBI to nominate someone? This was a good idea b/c at least FBI keeps good records of who got on the list. All those forms and memos were in place when they audited. However, it turns out that these agencies have not been going through FBI, they have been forwarding their nominations directly to NCTC who insanely has been listing the FBI as the nominating agency (so how you gonna now sort them apart?–Sheez!) and the FBI has no freakin’ idea who these other agencies put on, what criteria were used, there are no records.
Well, unless the agency itself kept them only, whoops, we don’t know which agency to ask because NCTC coded them all as FBI! FUBAR!
Go read the report. But take your blood pressure medication first.