Computers, Privacy & the Constitution
The Sixth Amendment establishes that in “all criminal prosecutions, the accused shall enjoy the right… to be informed of the nature and cause of the accusation; [and] to be confronted with the witnesses against him…” These guarantees, which apply to both state and federal prosecutions(1), have shaped criminal procedure, demanding that defendants have a fair opportunity to defend themselves against false accusation. Despite Crawford’s emphasis on the importance of these protections, in some shadowy corridors of government action the Amendment’s guarantees are simply ignored. Federal Anti-Terrorism efforts have spurred the rise of “quasi-prosecutions;” administrative procedures removed from criminal law and its protections, but retaining the power to inflict substantial harm on its targets. For example, federal terrorist watch lists have increased both in length and in impact since September 11th(2), threatening the personal liberties of thousands of innocent Americans. Yet, these individuals do not have the right to learn why their names appear on such lists, nor may they confront the responsible officials. By employing such lists, the government accuses and punishes its own citizens, while circumventing the protections of criminal procedure. Congress should close this loophole by passing legislation demanding that the use of terrorist watch lists conform to our citizenry’s rights of information and confrontation.

A. Background on Terrorist Watch Lists

Terrorist watch lists have been maintained since at least the 1980s, but their dimensions and influence have expanded concurrently with the War on Terror. Understandably, the techniques employed to develop these lists are confidential, but what little is known about their creation is not reassuring. One list, the Terrorist Screening Database is made up of names nominated and reviewed internally by the Justice Department, without legitimate external oversight or review.(3) Other lists are maintained through data mining and pattern recognition techniques authorized under the PATRIOT ACT, involving thousands of pieces of data reported to various agencies by entities such as banks or through programs like the NSA Surveillance Program.(4)

Individuals whose names are placed on such lists are not generally notified until their status results in a punishment, such as missing a flight or being subject to more overt interrogation or screening. They are generally offered little to no information about the list or their presence on it, and those minimal procedures in place to challenge their categorization are opaque and ineffective. In the case of the No-Fly list, listed individuals can challenge their status on grounds of name confusion – i.e. that they have a name similar or identical to a suspected individual. However, even if they prove their case, their information is not removed from the list, but rather a notation is added to mark their updated status.(5) It is unclear whether such a notation relieves such individuals from future surveillance.

In light of the consequences resulting from finding one’s name on such a list, evidence of their inaccuracy is especially concerning. A 60 Minutes investigation found terrorist watch lists containing numerous deceased individuals, as well as the President of Bolivia.(6) In 2004, U.S. Senator Ted Kennedy was blocked from boarding five flights as a result of his name appearing on such a list.(7) Errors on lists compiled through digital data mining are especially concerning, as the data they include is often both false and difficult to retrace, making any error nearly impossible to correct.(8)

B. Suggestions for Making a Useful Tool Constitutional

The promise of justice underlying the Sixth Amendment should apply with equal force to administrative procedures like the creation of terrorist watch lists. In Crawford, the Court described the two historic goals of the clause; the elimination of ex parte examinations as evidence against the accused, and the protection of the right of cross-examination, both prongs of the overriding mission to ensure only reliable evidence is presented at trial. If these terrorist watch lists are as unreliable as they seem, it is critical that citizens have the opportunity to correct them—otherwise this administrative system of secret accusation and punishment is no better than Justice Scalia’s vilified trial of Sir Walter Raleigh.

Terrorist watch lists are an effective tool to track terrorist activity, yet their use should only continue if it can comply with the Constitution. There are several relevant precedents of courts and legislators developing creative compromises between the need for confidentiality on the one hand and protection of the Sixth Amendment on the other. In Hamdi, the Court detailed an acceptable compromise position for individuals seeking to challenge their detention as enemy combatants, satisfying (they felt) the obligations of the 6th amendment by requiring that at minimum a summary or redacted version of the evidence be provided to the accused.(9) Similarly, the Classified Procedures Information Act(10) permits a court to allow the government to present summarized or redacted copies of the evidence against the accused so long as the essential facts remain discernable.

These two precedents offer a bare minimum of what an administrative proceeding for those who find themselves on suspected terrorist lists might look like. While perhaps unlikely to be implemented, there are several measures that should be taken to minimally conform the list challenging process with the rights-structured procedure we expect. First, the Sixth Amendment guarantees a right to confront one’s accuser. While terrorist flight lists compiled from data mining results and Justice Department nominations likely can not produce a single “accuser,” a compromise might be to afford an individual a chance to learn something of the accusations filed against him from a representative of whatever department is responsible. they should be permitted to know what Government actions or surveillance (even in broad terms) have been implemented against them, and to start the process of challenging their listing Second, interested parties should be able to determine whether their name appears on one of these lists, and challenge such appearance, before they encounter punishing consequences. This could be accomplished through an inquiry and answer system similar to FOIA requests, that would permit interested parties to learn their status, even in broad terms.

996 Word

(1) Pointer v. Texas, 380 US 400 (1965) (2) Justin Florence, Comment, Making the No Fly List: A Due Process Model for Terrorist Watchlists, 115 Yale L.J. 2148, 2150 (2006). (3) Peter, Shane, The Bureaucratic Due Process of Terrorist Watch Lists, 75 Geo. Wash. L. Rev. 804, 816-817 (2007). (4) Fred Cate, Government Data Mining: The Need for a Legal Framework, 43 Harv. CR-CL L. Rev., 435, 444-451 (2008). (5) Florence, supra note 2 at 2157-58. (6) Shane, supra note 3 at 817. (7) Sara Kehaulani Goo, "Sen. Kennedy Flagged by No-Fly List," Wash. Post, Aug. 20, 2004. (8) Cate, supra note 4 at 469-473. (9) Hamdi v. Rumsfeld, 542 U.S. 507, 532-36 (2004). (10) Florence, supra note 2 at 2165-66.



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r3 - 23 Jan 2009 - 15:58:16 - IanSullivan
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