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After Orlando Shooting: Attorney Discusses Politics Of Terrorist Watch List

In the aftermath of the massacre at an LGBT nightclub in Orlando by Omar Mateen, a conversation has erupted around expanding the terrorism watch list.

Gadeir Abbas, an attorney who has litigated cases on behalf of individuals placed on the watch list, recently wrote a piece for Shadowproof examining a part of the discussion. He also called attention to how the terrorism watch list is being internationalized, with India now a partner.

I interviewed Abbas about the politics of watch-listing. The video interview was recorded the day after a 15-hour filibuster, in which Senate Democrats and a few Senate Republicans supported expanding the terrorism watch list to enforce gun control.

During our conversation, we dig into the secret watch-listing process of the federal government, what Abbas describes as a “diabolical” system. Abbas not only raises concern about using this secret list, which violates due process rights, for gun control, but he also concludes from experience that the entire watch-listing system should be dismantled.

Below is a full transcript of the interview with attorney Gadeir Abbas, with some parts edited for clarity:

GOSZTOLA: What’s your assessment of the conversation as you’re hearing people talk about what should be done with the terrorism watch list?

ABBAS: It’s really a nauseating conversation. As an attorney, I’ve represented dozens of people that are on these watch lists, probably more than 50 at this point. And, generally speaking, as almost to a person, these people are on these watch lists are not charged with a crime ever. So, they’re innocent, and that’s infuriating that the discussion is around expanding this thing called the terrorist watch list that doesn’t include any actual terrorists.

The watch-listing system has really been a debacle from the very beginning. The government has always maintained a watch list for one reason or another, but after George W. Bush issued an executive order in 2003, the federal government chose to consolidate all its watch-listing in a single place. And what it chose to do is to set the standard for watch-listing at a really, really low level, at a really unprecedentedly low level.

The standard for being on the watch list is not you’re currently engaged in criminal activity. No, that’s not the standard. The standard is you pose a threat of committing of a terrorist act, and there’s a big difference between posing a threat of doing something and actually doing something. The federal government’s ability to predict the future about who among the innocent will later become a terrorist is essentially zero.

As part of a few cases, I’ve looked over the people who have actually committed acts of terrorism inside the United States, and I haven’t found a single person, who has committed an act of terrorism inside the United States, that was on a watch list at the time they committed their act of terrorism. And that means that the watch list is not a terrorist watch list. It’s an innocent people watch list.

GOSZTOLA: It’s possible you may be reacting to this quote for the first time. But there is a quote about the watch list that has gone viral, with Senator Joe Manchin talking about “due process.” So, I just want to get this full quote in here, and he basically said, “The problem we have and really the firewall we have right now is due process. It’s all due process. So, we can all say we want the same thing, but how do we get there?” He continued on, and this was during an appearance on MSNBC’s “Morning Joe”:

“If a person is on the terrorist watch list like the gentleman, the shooter in Orlando, twice by the FBI, we were briefed yesterday about what happened but that man was brought in twice. They did everything they could. The FBI did everything they were supposed to do but there was no way to keep him on the nix list or keep him off the gun buy list. There was no way to do that. So can’t we say that if a person under suspicion, there should be a five-year period of time that we have to see if good behavior, if this person continues the same traits, maybe we could come to that type of an agreement. But due process is what’s killing us right now.”

ABBAS: The first thing to note is the fact that Omar Mateen was visited by the FBI twice is completely unremarkable because the FBI maintains a network of more than 10,000 informants that saturate the Muslim community across the country. I’ve had people in my family that have been visited by the FBI. I’ve had people in my wife’s family be visited by the FBI. I have friends that have been visited by the FBI. Everybody in the Muslim community knows someone or has themselves been visited by the FBI, regardless of the their race, their ethnicity, their social status.

So, the FBI and this representative’s thought that because the FBI visited this killer is some indication that that person is going to be a future terrorist is not indicative. I bet with the number of visits and the number of assessments that the FBI conducts that you’re just as likely to find a terrorist that hasn’t been approached by the FBI as you are to find a terrorist that has previously been approached by the FBI.

Second of all, every single there is an act of terrorism and that person is not on a watch list, no one ever asks the question, well, why didn’t you watch list the person in the first place? And really it’s an indictment of the watch-listing system itself. The government cannot predict the future, and in fact, the many studies that have been done trying to correlations between the specific behavior, the specific backgrounds, and future propensity to commit acts of terrorism have found that they’re really aren’t any predictors of terrorism.

If we do want to latch on to a predictor of terrorism, probably the best one is people who commit domestic violence. There is a New York Times article that said ten to fifteen percent of all people, who commit acts of terrorism, have some domestic violence in their background. So, if we’re going to be watch-listing, let’s just put all of the people that are convicted of domestic violence on the watch list.

But that ultimately does not make any sense because when you’re trying to predict an extraordinarily rare event, you’re unable to do so. It’s in the nature of very large numbers, for instance, where lightning strikes. You cannot predict with any meaningful certainty where a tornado land. Those types of things, because of the nature of the thing that you’re predicting, evade the ability of the federal government to predict the future. So, what you end up constructing is an unprecedentedly large diabolical—really—system that accords people systematically second-class citizen status.

GOSZTOLA: Before we go further, I just want to establish that whatever we say from this point forward—I’m not, and I’ll let you speak for yourself, suggesting that what Republicans are going to be doing with the terrorism watch list is anything less than political opportunism because the gun issue plays well with their constituents. But I do want to get into a conversation about the nature of the terrorism watch list [as it relates to gun control] so I’ll pause there.

Is there anything you want to add, given the fact that there is tremendous ignorance from both major political parties when it comes to how the terrorism watch list impact American Muslims?

ABBAS: Sure. And I fall into that category as well. I’ve been litigating these cases for six years now, and when I first started litigating these cases, it occurred to me that there probably is some role for the watch list to play in national security. But after six years of seeing how the federal government uses the watch list, there is no role. There is no appropriate way that the federal government should have the authority to watch list people. Because, one, the government can’t predict the future, and two, the most effective way of countering acts of terrorism is by investigating people and arresting them if they’re terrorists.

GOSZTOLA: Ok, so I wonder if you a reaction to the fact that this is something the government wants to possibly use in order to enforce gun control. Given the cases you’ve litigated, what comes to your mind as the problems? Peeling aside the partisan politics of whether people should have Second Amendment rights or no Second Amendment rights, whether they should have what gun or which gun, I mean, assuming we all want to prevent the worst types of gun violence, what are the problems with using this terrorism watch list to enforce gun control?

ABBAS: First off, the American people that would be predominantly affected, if we’re using the watch-listing system as gun control—We’re only talking about several thousand people out of a country of more than 300 million. When we reduce gun control down to the few thousand Americans that are on this watch list, we’re probably not accomplishing anything in a best case scenario anyways.

What’s most fascinating to me is that the Republicans are just better on this issue, and they’re better on this issue because they view guns as a sacrosanct right, whereas the Democrats do not view the right of innocent people to move as sacrosanct. Because they understand that when we’re talking about watch-listing, we’re really only going to be affecting the Muslim community and no one else.

Furthermore, the incidents of mass violence perpetrated by people with guns has not overwhelmingly been by people who are Muslim. We know that the watch lists disproportionately affect the Muslim community. It is extraordinarily to find anybody on a watch list that is not Muslim.

GOSZTOLA: Judging the record of the government, judging the stigma attached to going after non-Muslim people are suspected of being involved in terrorism activities, what do you have as a concern for how, if this were to pass, it would disproportionately just be targeted toward Muslim communities?

ABBAS: Ultimately, the people that are on the terrorist watch list understand they’re being surveilled in some capacity by the federal government. So, these people aren’t trying to buy guns anyways. I think there was a government report a few years ago that said there was 80 or 90, less than a 100 instances, where a person on a watch list actually tried to buy a gun. And so, we’re not actually talking about a large number of folks.

Again, one of the issues with the watch-listing system is that first you have to put the people that will be dangerous in the future on the watch list. You have to predict the future, which the government cannot do. But, second, you have to make sure the point of purchase, wherever the matching between the person and watch list is occurring, you have to make sure that happens accurately and well. At this point, no one’s talking about a watch-listing application at gun shows. Even that people that want a gun and are on a watch list could just go to a gun show. Or, they could buy a black market gun. That’s very easy to do.

I think the case of Faisal Shahzad really illuminates this very well. He was known to the government before he tried to detonate a bomb in Times Square, but they didn’t put him on a list. Soon after, he detonated his device, and they put him on the No Fly list. He was still able to board a plane, even though he was on the No Fly List, because the mechanism of distributing of the No Fly List and these watch lists is clunky.

Whenever you’re trying to create an information system that has hundreds of thousands of entries into it, that changes more than a hundred times each day, you’re going to have issues with disseminating that information. The watch-listing system fails on every level that the watch-listing system is supposed to be successful.

Ultimately, this is really an exercise in futility. For some people, it’s going to make some folks feel better that the so-called terror gap, as people are calling it, is going to be closed. For others, the gun lobby, they’re going to be very happy that the only thing there is conceding in the gun debate is that a few thousand Muslimss that are probably not trying to buy guns anyways, won’t be able to buy guns. At the end of the day, in the midst of mass shooting after mass shooting, I bet the NRA lobby is happy to make this concession because ultimately it’s a meaningless form of gun control.

GOSZTOLA: It’s remarkable to me because, following the NRA, they seem to be taking the civil libertarian line for instituting due process. So, I want to detach ourselves from the times for just a moment and add some context to our conversation before we wrap up the interview. But I do think it is important to bring in this aspect of what is happening.

FBI Director James Comey is apparently concerned about maybe bringing in this terrorism watch list and using it in the way that it would be used. Apparently, they have tools outside of using the terrorism watch list right now. They can tell when people buy guns, who are suspicious. Usually, we would be able to use those tools to go after those people.

I think we should bring into the conversation—There are very real ways that this is used in a punitive sense against people to control them or to discourage certain behaviors within communities. Could you talk about?

ABBAS: Absolutely. The watch-listing system is primarily punitive. The FBI agents that are placing on these watch lists don’t take them seriously. They understand it’s a form of CYA, cover your ass. If you end an investigation and you don’t know what to do or where to take things, just throw them on a watch list—98.96 percent nominations, as of 2014, get accepted. So, the FBI agent makes a nomination. The Terrorist Screening Center essentially always accepts the nomination.

For folks that are engaged in political activity, for folks that have been engaged in relief efforts in Middle Eastern countries, as a result of the Arab Spring, people who went to Libya to help with relief work or anti-Gaddafi activity, people who are working to bring relief and aid to Syria, those are the folks that end up on the terrorism watch list. People who refuse to sit down with FBI agents without an attorney, those people end up on a watch list.

And what’s remarkable to me is whenever it’s been the case that a substantial amount of attention gets brought to a particular case, after a lawsuit gets filed, that all of a sudden a person who spent years unable to fly or years being brutalized by secondary screening and humiliated in front of friends of family—those people are just taken off the watch list without a moment’s notice.

I had a case last year, where I represent a guy named Yasin Kadura. He was on the No Fly List. He was born in the U.S. He went to Libya to do Arab-English translation for a lot of journalists, who were coming to cover the revolution before it was clear where it was going. He played a big part of organizing a journalism center in Benghazi. And when he came back, there was a Homeland Security agent that told him we don’t think you’re a dangerous guy, but we’re going to put you on this list and you’re not going to be able to fly unless you work with us.

He didn’t want to take their money. He didn’t want to be a spy for the FBI, as is a very reasonable decision to me. As a result of making that choice, the FBI punished him. They put him on the No Fly List for several years. We filed suit, and after we filed suit, the government just via email. They didn’t get any additional information about Yasin. They just took him off the No Fly List, and they took him off the No Fly List as a litigation tactic.

The Congress unfortunately has next to no promise to reform this watch-listing system that’s run amok. All that’s left is the courts, and this really is the prerogative of the courts to defend the rights of a very, very unpopular minority, Muslims. And not only Muslims, Muslims that have been accused of being terrorists by the federal government. That’s probably the least popular group in America right now, and if the courts don’t step in and constrain the government’s watch-listing authority, we’re going to see people in the coming decades from the federal highway system or from Amtrak as a result of this watch-listing system.

GOSZTOLA: So, last question. I think this is probably a good note to end on. When you hear someone like Senator Joe Manchin say due process is what’s killing us now—It’s a Sisyphean task to bring due process to the terrorism watch list. People have been trying to do that for a decade plus now. And I’d like you to talk briefly about what that has been like, because you’ve been doing work to bring some semblance of due process to the watch list.

ABBAS: It’s been enormously frustrating. My impression of the watch list in 2010 was that it was much more reasonable than what it turned out to be. Everything that we learn about the watch list reminds just how dumb it is, and how poorly—This isn’t a problem of implementation. The problem is inherent in the idea that we’re going to assign a federal agency in Vienna, Virginia, we’re going to assign them the authority to predict the future and to punish people based on their predictions of the future.

The passage of time has shown us that the government is terrible at predicting the future. So, this isn’t about changing things on the margins. There are still cases that I work on, arguments about due process and getting process after the fact. But really the thing I’ve taken away from doing this work for six years now is really we don’t need more due process. We need an entire end to the watch-listing system. That is the goal of various cases that I am involved with. I think that’s the only solution for the debacle of the federal watch-listing system.

Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."