Designating the Dangerous: From Blacklists to Watch Lists

Abstract

In both the McCarthy and post-9/11 periods the U.S. has turned to administrative measures to label those perceived to be the greatest risks to internal security. The 1950s saw the blacklisting of suspected Communists and the even more extensive disqualification of government employees under the era's loyalty and security programs. Today, the most widespread efforts to identify terrorists and suspected terrorists involve the growing phenomenon of terrorist watch lists: compilations of names of known or suspected terrorists that are then checked against particular individuals at specified occasions, triggering certain consequences.

This Article examines how the 21st century use of watch lists might or might not resemble the labeling of the McCarthy period, and how the experience of that era might inform an evaluation of present-day designation of the dangerous. After first describing the two labeling mechanisms, it compares them along several axes, finding that watch listing has both repeated some 1950s failings and moved on to develop some new ones of its own. In particular, because they are compiled and used in an opaque and completely one-sided process, watch lists run a substantial risk of incorrectly including many people who pose no threat.

Drawing on the experience of the 1950s, the Article assesses three ways to address this problem of false positives in the designation of the dangerous: narrowing the substantive standard for selection; adding procedural protections, particularly some form of adversarial process; and restricting the uses of the resulting list. The Article recommends that watch lists be used only to trigger surveillance, investigation, or other relatively minor impositions. In other words, the watch should be put back in watch lists. With that limitation, watch lists can serve a valuable function of separating the more threatening from the less threatening, thereby increasing the efficiency of terrorist screening and investigation.

Keywords: watch list, blacklist, due process, terrorism, terrrorist, passenger screening, airport security, secure flight, capps

JEL Classification: K23, K42